author: CANE, C.J.

text:
    Michael F. MULLEN, Plaintiff-Appellant, v. Cedar River Lumber Company and Travelers Property Casualty, a/k/a Travelers Indemnity Company, Defendants-Respondents.
    Court of Appeals

      No. 00-3123-FT.

      Submitted on briefs March 21, 2001.

    Decided May 22, 2001.

    2001 WI App 142
    (Also reported in 630 N.W.2d 574.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Clay F. Teasdale oí Murphy & Teasdale of Marinette.
    On behalf of the defendants-respondents, the cause was submitted on the brief oí Patricia A. Chucka of Law Offices of Catherine A. Thomas of Brookfield.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   CANE, C.J.

¶ 1. Michael Mullen appeals from a summary judgment dismissing his negligence claim against Cedar River Lumber Company and the company's liability insurer, Travelers Indemnity Co. Mullen, who was acting in his capacity as the superintendent of public works at the time he was injured, slipped and fell at the scene of a traffic accident allegedly caused by Cedar River's driver. The trial court held that the firefighter's rule, as adopted in Hass v. Chicago & N.W. Ry., 48 Wis. 2d 321, 179 N.W.2d 885 (1970), bars Mullen's claim. We disagree and, therefore, reverse the summary judgment and remand for further proceedings.

Facts

¶ 2. Because this case arises on a motion for summary judgment, we accept the facts alleged by the plaintiff as true. See Pinter v. American Fam. Mut. Ins. Co., 2000 WI 75, ¶ 4, 236 Wis. 2d 137, 613 N.W.2d 110. The facts alleged by Mullen are as follows.

¶ 3. On February 7, 1997, Cedar River's driver negligently caused a traffic accident. Mullen, superintendent of public works for the City of Marinette, heard on his two-way radio that a motor vehicle accident had occurred. Mullen drove to the accident scene because the report indicated there had been a diesel fuel spill.

¶ 4. Upon arrival at the scene, Mullen observed diesel fuel covering the road and arranged for his work crew to bring sand to the site to cover the fuel. When the truck carrying the sand arrived, Mullen motioned to the driver. As he did so, he slipped on the diesel fuel and fell, suffering injuries.

¶ 5. Mullen sued Cedar River and its insurer (collectively, Cedar River), arguing that his injuries were the proximate result of Cedar River's driver's negligence. Cedar River moved for summary judgment, arguing that a public policy limitation on liability, commonly termed the "firefighter's rule," bars Mullen from pursuing a negligence action against Cedar River. The trial court agreed and granted summary judgment in Cedar River's favor. This appeal followed.

Legal Standards

A. Standard of review

¶ 6. Summary judgment was granted in this case in reliance on the Hass and Pinter cases, which established a public policy limitation on liability for firefighters and emergency medical technicians (EMTs), respectively. Whether public policy considerations preclude a particular cause of action is a question of law to be determined solely by the court. Pinter, 2000 WI 75 at ¶ 13. Although it is often better to examine policy considerations after the facts have been resolved by trial, there are cases in which the public policy question is fully presented by the pleadings, affidavits, and depositions, especially where the relevant facts are undisputed. See id. This is such a case.

¶ 7. Accordingly, this appeal presents a single issue: Does the firefighter's rule, as adopted in Hass and extended in Pinter, bar Mullen from pursuing a claim against the negligent driver for injuries sustained while assisting in the containment of diesel fuel spilled as a result of an automobile accident? We answer the question in the negative.

B. The firefighter's rule

¶ 8. In Pinter, our supreme court summarized the firefighter's rule:

Most jurisdictions in the United States limit liability in negligence cases under a theory of law commonly termed the "firefighter's rule." As applied to firefighters, the rule limits a firefighter's ability to recover damages for injuries sustained while performing his or her duties as a firefighter.
. . . Thirty years ago, public policy led this court to recognize a limitation on liability in a firefighter's negligence action in Hass.
In Wisconsin, even when negligent conduct was a substantial factor in causing an injury, public policy considerations may preclude the injured party from pursuing a cause of action.

See id. at ¶¶ 14-16. The court observed that Hass and subsequent firefighter's cases showed that the public policy limitation in Hass "is so limited that it applies in few cases. It bars a cause of action only when the sole negligent act is the same negligent act that necessitated rescue and therefore brought the firefighter to the scene of the emergency." See Pinter, 2000 WI 75 at ¶ 31. The Pinter court concluded that the public policy analysis in Hass remains sound and reaffirmed the continued viability of the firefighter's rule in Wisconsin. See id. at ¶¶ 38-40.

¶ 9. The Pinter court also extended the public policy reasoning of Hass to EMTs, concluding that the firefighter's rule bars an EMT from pursuing a claim against a negligent driver for injuries sustained while rendering aid to the victim of an automobile accident. Id. at ¶ 51. First, the court concluded that firefighting and serving as an EMT are closely related professions. See id. at ¶ 43. The court explained:

Members of both professions have special training and experience that prepare them to provide assistance under dangerous emergency conditions. Persons entering either profession know that they will be expected to provide aid and protection to others in these hazardous circumstances. In short, both EMTs and firefighters are professional rescuers who are specially trained and employed to conduct rescue operations in dangerous emergencies.

Id.

¶ 10. Second, the court rejected the argument that the firefighter's rule was inapplicable because the plaintiffs claim was based on negligent driving rather than on the negligent starting of a fire, concluding that an automobile collision is equivalent to a fire under the public policy analysis in Hass. See Pinter, 2000 WI 75 at ¶ 46.

Discussion

¶ 11. At issue is whether the firefighter's rule established in Hass and extended in Pinter to include EMTs should again be extended to include a superintendent of public works who sustains injuries while assisting in the clean-up of fuel spilled during a traffic accident. Although Hass and Pinter addressed whether entire classes of individuals, i.e., firefighters and EMTs, would be barred by the firefighter's rule, we are not prepared to extend that determination with respect to all superintendents of public works. The record is devoid of any evidence that all superintendents of public works have the same job duties and training. Accordingly, our analysis will focus on whether the firefighter's rule should bar this particular individual's claim under the facts, as alleged, given his specific job duties and training.

¶ 12. Cedar River contends that extending the firefighter's rule to include Mullen is consistent with Hass and Pinter because Mullen was specially trained and knowingly confronted an open and obvious hazard in the course of his occupation. Cedar River argues:

Mullen did have special knowledge and experience. Mullen was specifically called to the scene of the accident because of his experience and knowledge in handling fuel oil spills. Mullen is in exactly the same position as Mr. Pinter ... It was his specific knowledge and experience in handling fuel oil spills which caused him to be on the scene of the accident. There is no allegation that Mullen did not see the fuel oil on the roadway. Mullen testified in his deposition that he walked through the fuel oil on more than one occasion prior to slipping and falling.

¶ 13. Cedar River also cites Gould v. American Fam. Mut. Ins. Co., 198 Wis. 2d 450, 543 N.W.2d 282 (1996), in support of its position. Gould held that an individual institutionalized with a mental disability who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation. Id. at 453. Gould created a narrow exception to the general rule that tortfeasors cannot invoke mental capacity as a defense. See Jankee v. Clark County, 2000 WI 64, ¶¶ 54, 59, 235 Wis. 2d 700, 612 N.W.2d 297.

¶ 14. Although Gould was not expressly identified as a firefighter's rule case, the court in Gould relied in part on Hass to support its public policy decision to bar recovery for the injured caretaker. See Gould, 198 Wis. 2d at 461-62. The court stated:

By analogy, this court in Hass v. Chicago & N.W. Ry., 48 Wis. 2d 321, 326-27, 179 N.W.2d 885 (1970), relied on public policy considerations to exonerate negligent fire-starters or homeowners from liability for injuries suffered by the firefighters called to extinguish the fire. This court held that to make one who negligently starts a fire respond in damages to a firefighter who is injured placed too great a burden on the homeowner because the hazardous situation is the very reason the fireman's aid was enlisted. Id. at 324, 327.
Likewise, Gould, as the head nurse in the secured dementia unit and [the patient's] caretaker, had express knowledge of the potential danger inherent in dealing with Alzheimer's patients in general and [this patient] in particular. Holding [the patient] negligent under these circumstances places too great a burden on him because his disorientation and potential for violence is the very reason he was institutionalized and needed the aid of employed caretakers.

Id.

¶ 15. We conclude that although there were compelling public policy considerations that led our supreme court to bar recovery in Hass, Pinter and Gould, the facts in this case do not support such a conclusion. According to Mullen's deposition, testimony and affidavits, he responds to approximately one fuel spill a year, and his role is generally to apply sand to absorb and dam the spill. Although Mullen has experience and has received some training on responding to fuel spills, it is undisputed that responding to spills constitutes only a small part of Mullen's job. He is also responsible for garbage removal, the recycling program, road maintenance and snow removal.

¶ 16. Given Mullen's limited duties at the time of a fuel spill and the infrequency of spills to which he responds, we are unpersuaded that Mullen's role is sufficiently similar to the role of firefighters and EMTs to justify extending the firefighter's rule to include Mullen. Unlike firefighters and EMTs, Mullen is not a professional rescuer who is "specially trained and employed to conduct rescue operations in dangerous emergencies." See Pinter, 2000 WI 75 at ¶ 43.

¶ 17. In summary, we conclude that the firefighter's rule does not bar Mullen's claim against a negligent driver for injuries sustained while assisting in the containment of diesel fuel spilled as a result of an automobile accident. We reverse the summary judgment and remand for further proceedings consistent with this opinion.

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

       This is an expedited appeal under Wis. Stat. Rule 809.17 (1999-2000). All statutory references herein are to the 1999-2000 version.

       Moreover, neither party argues that there are disputed issues of fact that preclude summary judgment. Rather, they agree that the legal issue presented is the sole issue on appeal. Their approach is consistent with the trial court's hearing statement that there are no facts that would be developed at trial that would necessarily assist the court in deciding this issue.

       Cedar River's motion was originally filed as a motion to dismiss, but was treated as a motion for summary judgment. See WlS. Stat. § 802.06(3) (a motion to dismiss shall be treated as a motion for summary judgment when the trial court considers matters outside the pleadings). Accordingly, we treat this case as a review of a summary judgment.


source: Caselaw Access Project

author: DYKMAN, P.J. ROGGENSACK, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Debra Noble, Defendant-Appellant.
    Court of Appeals

      No. 99-3271-CR.

      Oral argument December 4, 2000.

    Decided May 24, 2001.

    2001 WI App 145
    (Also reported in 629 N.W.2d 317.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeff Brinckman of Brinckman Law Office, S.C. of Prairie du Chien.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
    Before Dykman, P.J., Roggensack and Mason, JJ.

      Petition to review granted.

       Circuit Judge James Mason is sitting by special assignment pursuant to the Judicial Exchange Program.

   DYKMAN, P.J.

¶ 1. Debra Noble appeals from a judgment convicting her of perjury. While she identifies seven issues, many are interconnected. We conclude that there are three issues we need to address. These are: (1) Was the evidence sufficient to convict her? (2) Was she denied due process of law because the State's investigator destroyed the notes of his investigation? and (3) Should the transcript of a John Doe proceeding that formed the basis for the perjury charge be excluded because the person who questioned her at the John Doe was not authorized to practice law?

¶ 2. We conclude that the evidence was sufficient to convict. We also conclude that the destruction of the investigator's notes did not deny Noble due process of law. We finally conclude that the correct sanction for the unauthorized practice of law is exclusion of the John Doe transcript. We therefore reverse and remand for proceedings consistent with this opinion.

¶ 3. The facts underlying Noble's conviction are not complicated. Prairie du Chien police suspected drug activity at "Rowdy's" bar, and raided it on April 2, 1999. Debra Noble was present when the raid occurred, but her husband Dan had left just prior to the raid. After the raid, Dan received a telephone call in which he was told something to the effect of "back off, or you are a dead man." Debra and Dan concluded that drug dealers believed that Dan was a police informant because he had left the bar just before the raid. They were frightened and notified the police of this threat.

¶ 4. On April 9, 1999, a state narcotics enforcement agent, David Matthews, and a Prairie du Chien police detective questioned Debra about drug activity at the bar. Matthews took notes of the conversation, which he destroyed after preparing a written report. According to the detective and Matthews, Debra told them about drug trafficking at the bar, including that she had been present when her husband bought cocaine from a bartender, and that he had done so for the past two years.

¶ 5. On April 23, 1999, Judge Kirchman convened a Wis. Stat. § 968.26 (1999-2000) John Doe inquiry. We have only a partial transcript of the inquiry's proceedings, which shows the following:

THE COURT: All right. I'm going to permit other persons here to ask some questions of you to get to the facts which are sought to be disclosed here. Mr. Matthews then?
MR. BAXTER [The District Attorney]: Yes, Your Honor. As we discussed earlier, Special Agent David Matthews from the Department of Justice will be conducting the examination. Sir.
SPECIAL AGENT MATTHEWS: Thank You.
EXAMINATION BY SPECIAL AGENT MATTHEWS:
Q: Ms. Noble, I want to pretty much focus on things that we had an opportunity to discuss at your place of employment on April 9th, at Cabela's. Do you recall....

¶ 6. Matthews questioned Noble about their conversation of April 9, 1999. Noble denied telling Matthews about drug trafficking at the bar. His questions of her at the John Doe inquiry and her answers to those questions are the basis of the perjury charge against her.

SUFFICIENCY OF THE EVIDENCE

¶ 7. This was not a perjury trial where the State alleged that a defendant lied when, at a John Doe inquiry, he or she denied committing a crime. Instead, the State is asserting that Noble lied at the John Doe inquiry when she denied telling the detective and Matthews about drug trafficking at the bar. Thus, to obtain a conviction, the State was required to convince the jury that the police officers were telling the truth about their April 9 conversation with Noble, and that she lied at the John Doe inquiry when she denied telling them any information about drugs.

¶ 8. State v. Petrone, 166 Wis. 2d 220, 226, 479 N.W.2d 212 (Ct. App. 1991), set out the elements of the crime of perjury: (1) An oral statement while under oath; (2) The statement was false when made; (3) The defendant did not believe that the statement was true when he or she made it; (4) The statement was made in a proceeding before a judge; (5) The statement was material to the proceeding. Noble concedes that she made the statements attributed to her while under oath and that they were made in a proceeding before a court.

¶ 9. We may not reverse a criminal conviction for insufficiency of evidence unless the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. State v. DeRango, 229 Wis. 2d 1, 30, 599 N.W.2d 27 (Ct. App. 1999), aff'd, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833. The State's evidence was sufficient to pass this test.

False When Made

¶ 10. Noble asserts that there is no way to know whether she was merely repeating hearsay on April 9, and that there is no way to know whether the April 9 statements attributed to her were true or false. She also focuses on Matthews' trial testimony that her statements on April 9 were "inconsistent" with her testimony at the John Doe inquiry. But whether Noble's April 9 statements are true or not is irrelevant. She was asked at the John Doe inquiry whether she made certain statements on April 9. She either made the statements attributed to her or she did not. If she did not make the statements on April 9, then her testimony at the John Doe inquiry was true. If she made the April 9 statements attributed to her, then her John Doe testimony that she did not make the statements was false when made.

¶ 11. Noble also asserts that because Matthews did not tape record the April 9 interview or have a court reporter present, or require her to sign a written statement, Matthews' testimony as to what she said was at best a paraphrase of what she really said, and insufficient to show a false statement. But Noble cites no authority requiring a tape recording, a transcript, or a signed statement to show the falsity of a statement. In State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980), we said that arguments unsupported by relevant authority were inadequate and do not comply with Wis. Stat. § 809.19(1)(e), and that we would refuse to consider such arguments in the future. If there is relevant authority holding that only evidence that is tape recorded, transcribed, or signed by a defendant is sufficient to support a perjury conviction, Noble has failed to cite it. We see no reason to depart from Shaffer now.

¶ 12. As to Noble's "inconsistent" assertion, that too overstates what occurred. Matthews did testify that Noble's statements on April 9 were "inconsistent" with her John Doe testimony. But when Matthews was asked at trial to explain this inconsistency, he did so with exactitude. He testified: "On April 9 she described the relationship in which Jean Mattos was the source of cocaine for Dan Noble. And had been for a period of time." Noble's testimony at the John Doe inquiry was to the contrary:

Q. Okay. Do you deny telling us now that Dan had been getting cocaine from Bobbie Jean Serrano and her mother Jean Mattos for two years?
A. I don't know anything about this.
Q. So you deny telling us that on that date?
A. Yes, I do.

A reasonable jury could believe Matthews as to what Noble told him on April 9, and conclude beyond a reasonable doubt that her John Doe testimony was false when made.

Knowing Falsehood

¶ 13. Noble selectively quotes from questions asked of her at the John Doe inquiry. She argues from those questions that the State did not prove that she knew her statements were false when she made them. But this is not the test. We do not examine the record, as Noble has, to find evidence that she did not know of her false statement. See Staehler v. Beuthin, 206 Wis. 2d 610, 617, 557 N.W.2d 487 (Ct. App. 1996). Noble has the test backwards. We examine the record to find evidence to support the jury verdict. Id. The following excerpts show that a reasonable jury could have concluded beyond a reasonable doubt that Noble knew that what she testified to at the John Doe inquiry was false. The questions were asked at trial by the district attorney, and the answers were given by Matthews:

Q: Can you tell us a little bit about what she [Debra Noble] said along those lines?
A: She said that on that afternoon, prior to the police arriving, that she was with her husband Dan Noble at Rowdy's Bar and that she was present when he made contact with Jean Boland in order to obtain 1/8 ounce of cocaine and that he had ordered a week earlier, and that Dan wasn't there when the police came in because he had gone to get money to pay for that cocaine.
Q: Okay. Did Miss Noble give you any information or make any statement regarding an actual offer that she overheard by Jean Boland to her husband Dan?
A: Yes, she did.
Q: Go ahead, please.
A: She said that Jean Boland had actually offered to sell Dan two 1/8 quantities, or 8-balls as she referred to them, of cocaine and that she had interjected herself into that and essentially prohibited Dan from doing that and said that he could only get the one. She didn't want him to get two.

We contrast this testimony with Noble's testimony at the John Doe inquiry.

Q: [of Debra Noble] Could you tell us now, what was the relationship that Dan had with Jean [Boland]?
A: He was — she's a bartender there.
Q: Do you know of any involvement between the two of them with respect to controlled substances?
A: No, I don't.
Q: Okay. My recollection was that you told us Dan had ordered cocaine from Jean Boland a week prior to April 2nd and that on April 2nd he was there to pick up the drugs that he had ordered a week earlier. Do you deny telling us that?
A: I don't know what you're talking about.
Q: Do you deny telling us that?
A: Yes.

¶ 14. Noble engages in semantic disputes as to the meaning of "recollection" and "know." She asserts that some of the questions involved hearsay, and speculates that the jury did not know the difference between "hearsay" and "personal knowledge." She is concerned that Matthews' testimony paraphrased her April 9 statements. This is at best a red herring, especially since Noble cites no authority for her assertions. See Shaffer, 96 Wis. 2d at 545-46. The questions and answers we have quoted are not difficult to understand, and can be understood by persons of average intelligence. Matthews asked Noble about drug dealing at Rowdy's bar when he interviewed her on April 9. She made specific answers that indicated beyond any doubt that she knew a great deal about the purchase and sale of cocaine, and that her husband was involved in the transactions. When questioned two weeks later at the John Doe inquiry, Noble denied knowledge of drug dealing at the bar. There are only two conclusions one can draw from the material we have quoted. Either Matthews was lying at trial or Noble was lying at the John Doe inquiry. If, as the jury concluded, Matthews was telling the truth, the jury was easily entitled to infer that Noble knew she was telling a lie at the John Doe inquiry.

Materiality

¶ 15. Noble cites no authority for her assertions that because Arlene Melvin was the target of the John Doe proceeding, evidence concerning others was not material to the inquiry. We have explained that Shaffer, 96 Wis. 2d at 545-46, condemns this type of argument, and we again see no reason to depart from Shaffer now. And we see no logic in Noble's view that a John Doe inquiry is designed to determine whether a particular individual has committed a crime when the supreme court has concluded that a John Doe complaint need not name a particular accused. See State v. Washington, 83 Wis. 2d 808, 822, 266 N.W.2d 597 (1978). Noble has failed to show, in the trial court or here, that the only person pinpointed in the John Doe complaint was Melvin, and that drug dealing at Rowdy's was not a concern of the inquiry. To the contrary, a Prairie du Chien detective testified that the subject matter of the John Doe inquiry was a Crawford County drug ring that operated, at least in part, from the bar frequented by Noble and her husband. There was sufficient evidence to show that Noble's John Doe testimony was material to the investigation.

DESTRUCTION OF EVIDENCE

¶ 16. Noble next contends that her right to due process was violated because Matthews destroyed his original notes of the April 9 interview with her. According to Noble, the notes were exculpatory because they would have shown that her testimony at the John Doe was consistent with her statements to Matthews during the April 9 interview.

¶ 17. A defendant's right of pretrial access to exculpatory evidence needed to prepare a defense is protected by the Due Process Clause of the Fourteenth Amendment. State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994). The defendant's due process rights are violated by the destruction of evidence if: (1) the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith. Id. at 885-86.

¶ 18. Noble has not argued that Matthews destroyed his notes in bad faith, so she must demonstrate that the evidence they contained is apparently exculpatory and of such a nature that she could not obtain it by other reasonably available means. However, she offers no reasoning to support her claim that Matthews' original notes were exculpatory other than the general assertion that the notes would have shown that she did not say what Matthews reported. She introduced no evidence other than her testimony about the April 9 interview to establish that the notes contained exculpatory evidence, whereas Matthews testified that he used the notes to write his formal report just a few days after interviewing Noble. Before destroying the notes, he checked the report against them to ensure that the report was accurate. Furthermore, the Prairie du Chien detective's recollection of what Noble said on April 9 was consistent both with Matthews' report and his trial testimony. Therefore, we conclude that Noble has not demonstrated that the notes contained any apparently exculpatory evidence.

UNAUTHORIZED PRACTICE OF LAW

¶ 19. Noble argues that the transcript of her testimony at the John Doe inquiry should have been suppressed because the circuit court judge's decision to permit questioning by Matthews permitted the unlicensed practice of law and therefore, an abuse of the John Doe proceeding. She contends that in State v. Cummings, 199 Wis. 2d 721, 746, 546 N.W.2d 406 (1996), the supreme court concluded that suppression was the appropriate remedy for abuse of a John Doe proceeding. The State counters that all Matthews did was "assist" the district attorney, as was approved by the supreme court in State v. O'Connor, 77 Wis. 2d 261, 281, 252 N.W.2d 671 (1977), and even if his questioning constituted the unlicensed practice of law, suppression is not an appropriate remedy. We disagree with the State's characterization of Matthews' conduct and con-elude that it was the unlicensed practice of law, which the John Doe judge should not have permitted.

¶ 20. Wisconsin Stat. § 757.30 describes when activities constitute practicing law without a license. It provides:

Penalty for practicing without license.
(2) Every person who appears as agent, representative or attorney, for or on behalf of any other person, or any firm, partnership, association or corporation in any action or proceeding in or before any court of record, court commissioner, or judicial tribunal of the United States, or of any state, or who otherwise, in or out of court, for compensation or pecuniary reward gives professional legal advice not incidental to his or her usual or ordinary business, or renders any legal service for any other person, or any firm, partnership, association or corporation, shall be deemed to be practicing law within the meaning of this section.

In Wisconsin, the unauthorized practice of law may result in dismissal of an action when it deprives a court of jurisdiction. Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 211, 562 N.W.2d 401 (1997).

¶ 21. In order to examine Noble's claim, we must determine whether Matthews' actions at the John Doe inquiry constitute the unlicensed practice of law. Matthews is not a lawyer. He falls under none of the supreme court's authorized exceptions for the practice of law by nonlawyers. See SCR 50.03 (1982). Matthews' questioning of Noble was done at the State's behest; therefore, we conclude that when he did so he represented the State. The only question that requires some discussion is whether the John Doe inquiry was a proceeding before a court of record, a court commissioner, or a judicial tribunal of this state, as described in Wis. Stat. § 757.30(2).

¶ 22. The supreme court has already decided that a John Doe investigation is not a proceeding in a court of record. Washington, 83 Wis. 2d at 828. It was not conducted by a court commissioner. However, a judge who presides in a John Doe is "a judicial officer who serves an essentially judicial function." Id. at 823. "[T]he John Doe judge must 'conduct himself as a neutral and detached magistrate in determining probable cause which is the basic function of. . . [the] proceeding.' " Id. at 824. A "tribunal" has been defined as "[a] court or other adjudicatory body." Black's Law Dictionary 1512 (7th ed. 1999). Because the function of the presiding judge is to adjudicate whether there is probable cause to believe a crime has been committed by a given individual or individuals, we conclude that the judge is a judicial tribunal of this state during the course of a John Doe proceeding. Accordingly, because Matthews has no law license and represented the State in the John Doe proceeding by questioning Noble, he practiced law without a license.

¶ 23. We disagree with the State that O'Connor permits Matthews' conduct. O'Connor involved whether the scope of the presiding judge's discretion permitted him to grant an assistant attorney general's request to have a Department of Justice law enforcement officer present when witnesses were being examined, notwithstanding the secret nature of the proceeding. O'Connor, 77 Wis. 2d at 280-81. There is no suggestion in O'Connor that the officer questioned any of the witnesses.

¶ 24. Given our conclusion that Matthews practiced law without a license, the question then is whether there is a remedy for the State's use of an unlicensed person to examine witnesses at the John Doe investigation, and if so, what that remedy should be. The violation is significant; persons who practice law without a license are guilty of a crime and may be fined $500 or jailed for a year, in addition to being held in contempt of court. Wis. Stat. § 757.30(1). We are reluctant to conclude that there is no sanction for the unauthorized practice of law at a John Doe investigation other than the remote possibility of criminal prosecution. District attorneys have great discretion in deciding whom to prosecute. Sears v. State, 94 Wis. 2d 128, 133, 287 N.W.2d 785 (1980). Since it is generally the district attorney who examines witnesses at a John Doe investigation, Washington, 83 Wis. 2d at 823 n.10, it is unlikely that after asking an unlicensed person to examine witnesses at a John Doe investigation, a district attorney would then prosecute the person who had just done so. And it is also unlikely that a John Doe judge who had just authorized a non-attorney to practice law without a license would then exercise his or her discretion by issuing a criminal complaint against the non-attorney. If our conclusion that unlicensed persons cannot examine witnesses at a John Doe investigation is to have future significance, there must be a sanction more significant than a determination of harmless error.

¶ 25. Suppression of evidence obtained through the unauthorized practice of law is a possible sanction. We recognize the general rule that evidence is to be suppressed only where the evidence was obtained in violation of an individual's constitutional rights. See State v. Verkuylen, 120 Wis. 2d 59, 61, 352 N.W.2d 668 ( Ct. App. 1984). But there are exceptions to this rule, and one exception is where the State abuses John Doe procedure. Where the State uses a John Doe investigation improperly to gather evidence for use in a pending prosecution, suppression of the witness's testimony and its fruits is an appropriate remedy. State v. Hoffman, 106 Wis. 2d 185, 206, 316 N.W.2d 143 (Ct. App. 1982). The supreme court has recognized this remedy.

It is only when the John Doe is used to gather evidence specifically relating to the crime for which the
defendant is being tried that an abuse of the procedure occurs. As the court of appeals correctly concluded in Hoffman, the appropriate remedy for such an abuse of the John Doe proceeding is suppression of any evidence so obtained.

Cummings, 199 Wis. 2d. at 746.

¶ 26. Another possible sanction for the State's unauthorized practice of law would be to exclude the evidence obtained through its unauthorized act. While this might appear to be identical to suppressing evidence, the two are different. In State v. Eichman, 155 Wis. 2d 552, 562, 456 N.W.2d 143 (1990) (citations omitted), the supreme court explained:

[W]e agree with Mr. Eichman that there is a distinction, albeit a fine one, between "suppressing" evidence and "excluding" evidence. The former generally bars admission of evidence at trial as a result of governmental misconduct, such as a constitutional violation. The latter generally involves only a violation of the rules of evidence.

¶ 27. Though Hoffman examined a different abuse of a John Doe investigation, we noted in Hoffman that the only effective remedy for the abuse was to prohibit the government from profiting from the abuse. Hoffman, 106 Wis. 2d at 206. And, as we have noted, that is also true here. The only effective remedy for the use of unauthorized persons in John Doe investigations is to prohibit the State from profiting from the abuse.

¶ 28. Prosecutorial misconduct can result in a sanction against the State, which can ultimately include dismissal of the charges against a defendant. See State v. Lettice, 205 Wis. 2d 347, 556 N.W.2d 376 ( Ct. App. 1996). In Lettice, a prosecutor brought criminal charges against a defendant's lawyer either to disqualify the lawyer or to delay an imminent jury trial. Id. at 349, 354. We concluded that this prosecutorial misconduct prejudiced the defendant in the underlying case, and we affirmed the trial court's order granting the defendant a new trial. Id. at 355. On a second appeal, we concluded that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevented the defendant from being tried a second time. See State v. Lettice, 221 Wis. 2d 69, 79, 84-85, 585 N.W.2d 171 (Ct. App. 1998). Let-tice was a criminal case; a John Doe investigation is not, and the district attorney's misconduct was at issue in Lettice, while here an investigator's unauthorized practice of the law raises the issue. But in both cases the State benefited from its unauthorized acts. It is difficult to justify a benefit resulting from an unauthorized act. Respect for the law is diminished when the person charged with enforcing the law is permitted to violate the law.

¶ 29. We are all familiar with the cases holding that the sanction when police violate a right guaranteed by the United States Constitution is suppression of evidence obtained from the violation. But we cannot directly use these cases, because cases following Miranda v. Arizona, 384 U.S. 436 (1966), hold that Miranda is an exclusionary rule reserved for criminal actions. See Village of Menomonee Falls v. Kunz, 126 Wis. 2d 143, 147, 376 N.W.2d 359 (Ct. App. 1985). Still, the notion that though the State is constrained by constitution and statute, it may violate both with impunity, is a notion that should concern the governed in a free society.

¶ 30. While the issue is not free of doubt, we conclude that if the choice is between sanction and no sanction, the better conclusion is that there should be a sanction when the State obtains information through the unauthorized practice of law. The unauthorized practice of law is a crime, and both the legislature and the supreme court permit only attorneys to practice law. See Wis. Stat. § 757.30(1); SCR 40.02 (2000) (qualifications necessary to practice law). There is no hardship, and the State ultimately benefits, when a district attorney is required to become familiar enough with a case to examine a witness at a John Doe investigation. We conclude that dismissal of a criminal complaint is an unnecessary sanction. But exclusion of a witness's testimony obtained when an unlicensed person examines a witness at a John Doe investigation properly balances the right of the State to investigate allegations of criminal conduct with the prohibitions against the unauthorized practice of law. Accordingly, we reverse Noble's judgment of conviction, and remand for a new trial. As a sanction for the State's unauthorized practice of law, we conclude that when and if Noble is re-tried, the trial court should exclude information obtained by the State's unauthorized practice of law.

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

ROGGENSACK, J.

¶ 31. (dissenting). While I join the majority opinion in almost all respects, because I have concluded that suppression of Noble's John Doe testimony, exacted by the majority for what it concludes is the unauthorized practice of law, is improper, unnecessary and contrary to binding precedent, I respectfully dissent.

¶ 32. To reach the sanction the majority applies, it first determines, without the benefit of a trial, that Matthews engaged in the unauthorized practice of law contrary to WlS. Stat. § 757.30(1); then it assumes that Matthews probably will not be prosecuted for this crime:

We are reluctant to conclude that there is no sanction for the unauthorized practice of law at a John Doe investigation other than the remote possibility of criminal prosecution. District attorneys have great discretion in deciding whom to prosecute. . . . [I]t is unlikely that after asking an unlicensed person to examine witnesses at a John Doe investigation, a district attorney would then prosecute the person who had just done so.

Majority at ¶ 24. The majority then reasons, "[W]e conclude that if the choice is between sanction and no sanction, the better conclusion is that there should be a sanction when the State obtains information through the unauthorized practice of law." Majority at ¶ 30.

¶ 33. As a preliminary matter, I conclude that it is improper to apply a sanction to the State when a violation of WlS. Stat. § 757.30(1), the unauthorized practice of law, has not been proven at trial. Second, prosecution is not solely within the discretion of the district attorney as the majority opinion asserts. The John Doe statute, WlS. Stat. § 968.26, requires a judge to examine a complainant in a John Doe petition under oath, as well as any witnesses produced by that complainant, "once a John Doe complainant has shown that he or she has reason to believe that a crime has been committed." Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 615, 571 N.W.2d 385, 388 (1997). It is possible that the assistant district attorney who invited Matthews to participate in the John Doe proceeding that formed the basis for testimony used later in Noble's perjury trial will refuse to file a complaint against Matthews. If so, Noble, her attorney or any other concerned citizen could file a John Doe petition with the circuit court alleging "objective, factual assertions sufficient to support a reasonable belief that a crime has been committed" by Matthews. Id. at 623, 571 N.W.2d at 391. The circuit court would then question witnesses, review the evidence presented and determine whether to issue a complaint and a warrant for Matthews's arrest. As the supreme court instructed, "The John Doe procedure we adopt today gives citizens access to an impartial and neutral jurist for review of their criminal complaints." Id. at 624, 571 N.W.2d at 392. Therefore, there are more than the two choices of suppression or no consequences for Matthews's conduct at the John Doe that the majority's opinion presents.

¶ 34. Third, the sanction of suppression of evidence obtained through the John Doe proceeding is contrary to long-standing precedent, initially set forth by the supreme court in Ware v. State, 201 Wis. 425, 230 N.W. 80 (1930), and reaffirmed many times thereafter, most recently by this court in Peckham v. Krenke, 229 Wis. 2d 778, 601 N.W.2d 287 (Ct. App. 1999).

¶ 35. In Ware, a woman had been convicted of adultery based on her diary, which her husband had stolen and turned over to police for her prosecution. The supreme court refused to exclude the diary as evidence of her crime, even though it agreed the diary had been wrongfully obtained. It explained, "[t]he doctrine of the exclusion of evidence illegally obtained should be confined strictly to those cases where the procuring of the evidence has violated some constitutional right of the defendant." Ware, 201 Wis. at 427, 230 N.W. at 81. In State v. Mieritz, 193 Wis. 2d 571, 534 N.W.2d 632 ( Ct. App. 1995), a police officer's role in the cocaine purchase used to convict Mieritz was held to have been improper, but the evidence was not excluded because the officer's actions violated none of Mieritz's constitutional rights. Id. at 574, 534 N.W.2d at 633. Furthermore, the Ware rule, that suppression is not available as a sanction unless a constitutional violation has occurred, is also applied in civil proceedings. Peckham, 229 Wis. 2d at 787, 601 N.W.2d at 292 (citations omitted). "In summary,.. . the exclusionary rule is applicable in civil and criminal proceedings only where the evidence sought to be excluded was obtained in violation of a constitutional right or a statute that specifically requires suppression of wrongfully or illegally obtained evidence as a sanction." Id. (citations omitted). While the majority opinion tries to get around this clear precedent with obiter dicta from State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982), and from State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), I cannot. Accordingly, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. WISCONSIN STAT. § 968.26 provides in part:
      If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed. The extent to which the judge may proceed in the examination is within the judge's discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge. If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint may be reduced to writing and signed and verified; and thereupon a warrant shall issue for the arrest of the accused.

       It is not surprising that no one objected to Matthews asking questions. Though Noble's attorney was present at the John Doe inquiry, the trial court explained that although Noble could confer with her attorney, the attorney could not participate in the inquiry. See WlS. STAT. § 968.26. A John Doe judge may even exclude a witness's attorney. 18 Op. Atty. Gen. 563 (1929).

       Matthews testified that he destroyed his notes pursuant to a Department of Justice policy that had been in force since 1988.

       The district attorney is generally responsible for examining witnesses in a John Doe proceeding. State v. Washington, 83 Wis. 2d 808, 823 n.10, 266 N.W.2d 597 (1978). However, here, although the district attorney was present, he turned the questioning of Noble over to Matthews.

       This is a timely issue. The State Bar of Wisconsin is presently conducting statewide discussions on the future of the bar. One of the topics is the unauthorized practice of law.

       Wisconsin Stat. § 968.02(3) reads:
      If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination.

       Another exception exists where the State fails to produce legally and properly demanded evidence in a civil proceeding. The remedy for the State's violation is evidence suppression. See City of Lodi v. Hine, 107 Wis. 2d 118, 122, 318 N.W.2d 383 (1982). And where the State fails to comply with a discovery order in a criminal case, evidence suppression is a possible sanction. State v. Humphrey, 107 Wis. 2d 107, 116, 318 N.W.2d 386 (1982).

       The majority chooses to characterize what it does as an exclusion of evidence, but without an evidentiary objection, this is not an exclusion, it is a suppression. See Ware v. State, 201 Wis. 425, 427, 230 N.W. 80, 81 (1930).

       Wisconsin Stat. § 968.26 states in relevant part:

        If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her. ... If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint may be reduced to writing and signed and verified; and thereupon a warrant shall issue for the arrest of the accused.


author: HUE, J.

text:
    State Farm Mutual Automobile Insurance Company, Plaintiff-Respondent, v. Franklin Gillette and V. Thomas Ostlund, Defendants-Appellants.
    Court of Appeals

      No. 00-0637.

      Oral argument November 30,2000.

    Decided May 24, 2001.

    2001 WI App 123
    (Also reported in 630 N.W.2d 527.)

      On behalf of the defendants-appellants, the cause was orally argued by and submitted on the briefs of Gregory J. Egan of Parke O'Flaherty, Ltd., La Crosse.
    On behalf of the plaintiff-respondent, the cause was orally argued by and submitted on the brief of Claude J. Covelli of Boardman, Suhr, Curry & Field, LLP, Madison.
    Before Roggensack, Deininger and Hue, JJ.

      Petition to review granted.

       Circuit Judge William F. Hue is sitting by special assignment pursuant to the Judicial Exchange Program.

   HUE, J.

¶ 1. The issue on appeal is whether, as a matter of law, the appellants, Gillette and Ostlund, are entitled to uninsured or underinsured motorist benefits pursuant to policies of motor vehicle insurance issued by State Farm Mutual Automobile Insurance Company (State Farm). The trial court, in granting summary judgment, held that the tortfeasor's vehicle was not uninsured under the language of the policy, and that Gillette and Ostlund had not used up the limits of liability of the tortfeasor's policy, a prerequisite for claiming the underinsured benefits of the insurance policy. The trial court also concluded that because Manitoba's "no-fault" automobile liability law precludes recovery of noneconomic damages, Ostlund and Gillette could not utilize the underinsured motor vehicle coverage in State Farm's policy to recover noneconomic damages from State Farm. The trial court thus concluded that Gillette and Ostlund are not entitled, as a matter of law, to either uninsured or underinsured motorist benefits under the State Farm policies.

¶ 2. We agree that Gillette and Ostlund are not entitled to uninsured benefits and affirm that portion of the trial court's ruling. However, we conclude that Gillette and Ostlund are entitled to underinsured benefits and, therefore, we reverse that portion of the trial court's ruling.

BACKGROUND

¶ 3. The relevant facts are not in dispute. On October 11,1995, V. Thomas Ostlund, a Wisconsin resident, was driving his mother's Chevrolet pickup truck in Manitoba, Canada. Franklin Gillette was a passenger in Ostlund's vehicle. While legally stopped, Ostlund's truck was struck by another truck driven by Norman Unrau, a resident of Manitoba. The parties agree that Unrau was responsible for the accident and that the accident caused physical injuries to both Gillette and Ostlund.

¶ 4. Unrau's vehicle was registered in Manitoba and, consistent with Manitoba's "no-fault" automobile liability legislation, insured by the Manitoba Public Insurance Corporation (MPIC). Both Gillette and Ostlund submitted claims to MPIC for bodily injuries. MPIC paid Ostlund's subrogated health insurance carrier $20,000 and paid Ostlund, himself, $6,833.51 for impairment and health care expenses. Gillette has filed a claim but has received no payment for the twenty physiotherapy sessions he attended.

¶ 5. On the date of the accident, Ostlund's mother had a State Farm insurance policy on the Chevrolet pickup driven by Ostlund. That policy included medical payments coverage with limits of $5,000 per person, and uninsured motorist provisions with limits of $25,000 per person and $50,000 per accident. There is no underinsured motorist coverage in that policy.

¶ 6. Ostlund, the driver of the Chevrolet truck, had two automobile policies in effect, also issued by State Farm. These policies provided both uninsured and underinsured motorists coverage, with identical liability limits of $100,000 per person and $300,000 per accident. The uninsured motorist provisions of Ostlund's and his mother's insurance policies contain identical language.

¶ 7. The policy language relevant to an uninsured motor vehicle is as follows:

Uninsured Motor Vehicle — Coverage U
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
Uninsured Motor Vehicle — means:
1. a land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability at the time of the accident; or
b. insured or bonded for bodily injury liability at the time of the accident; but
(1) the limits of liability are less than required by the financial responsibility act of the state where your car is mainly garaged....

¶ 8. Section III of Mr. Ostlund's policies define Underinsured Motor Vehicle — Coverage W, in material part, as follows:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle.
THERE IS NO COVERAGE UNTIL THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS.
Underinsured Motor Vehicle — means a land motor vehicle:
1. the ownership, maintenance or use of which is insured or bonded for bodily injury liability at the time of the accident; and
2. whose limits of liability for bodily injury liability:
a. are less than the amount of the insured's damages; or
b. have been reduced by payments to persons other than the insured to less than the amount of the insured's damages.
Limits of Liability Coverage W
5. The most we pay will be the lesser of:
a. the difference between the amount of the insured's damages for bodily injury, and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury, or
b. the limits of liability of this coverage.

¶ 9. The parties agree that Gillette and Ostlund qualify as insureds under the uninsured motorists coverage of Ostlund's mother's policy and under the uninsured motorist and underinsured motorist coverages of the policies issued to Mr. Ostlund.

¶ 10. State Farm has paid Ostlund $4,400.20 and Gillette $2,408.80 in medical payment benefits under Ostlund's mother's policy.

DISCUSSION

¶ 11. Our review of summary judgment is de novo. The same standards apply at both the trial and appellate levels. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994). Summary judgment is available where, as here, no material facts are in dispute and one party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (1999-2000). Generally, interpretation of an insurance contract is a question of law subject to de novo review. Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis. 2d 206, 212, 341 N.W.2d 689 (1984).

¶ 12. The words in an insurance contract are construed as a reasonable person in the position of an insured would understand them. Garriguenc v. Love, 67 Wis. 2d 130, 134-35, 226 N.W.2d 414 (1975). If a word or phrase in an insurance contract is susceptible to more than one reasonable construction, it is ambiguous. Id. at 135. Any ambiguity that exists is resolved against the insurer, because the insurer drafted the documents and thus was in the best position to address, with clarity, the terms applicable. Id. However, clear, unambiguous policy terms may not be rewritten by the courts. Id.

¶ 13. The parties disagree whether Unrau's vehicle was uninsured as defined in the policies at the time of the accident. Gillette and Ostlund argue that Manitoba's "no-fault" automobile liability legislation, which precludes accident victims from recovering noneconomic damages (such as pain, suffering and emotional distress), renders the term "uninsured motor vehicle" in the policies ambiguous. Appellants cite Hull v. State Farm Mutual Automobile Insurance Co., 222 Wis. 2d 627, 586 N.W.2d 863 (1998), where the supreme court found the term "uninsured motor vehicle" in a State Farm policy to be ambiguous and required coverage, as support for their contention that the term is similarly ambiguous on the present facts.

¶ 14. State Farm argues that because Unrau was covered by liability insurance, and because that policy provided coverage in excess of the minimum required under Wisconsin's Financial Responsibility Act, his vehicle was not uninsured. We agree with State Farm's analysis.

¶ 15. Wisconsin Stat. § 632.32(4)(a)l requires every automobile liability policy issued in Wisconsin to include uninsured motorist coverage "[f]or the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident." As the supreme court explained:

[T]he purpose of uninsured motorist coverage" 'is to compensate an insured who is the victim of an uninsured motorist's negligence to the same extent as if the uninsured motorist were insured.'
Stated another way, the legislative purpose of § 632.32(4) is to place the insured in the same position as if the uninsured motorist had been insured.

Hull, 222 Wis. 2d at 644-45 ¶ 24 (citations omitted).

¶ 16. State Farm's policy defines "uninsured motor vehicle" to include a vehicle insured for liability if "the limits of liability are less than required by the financial responsibility act of the state where your car is mainly garaged." Consequently, in order to resolve whether Unrau's vehicle was uninsured as that term is used in State Farm's policy, it is necessary to compare the liability limits of Unrau's policy to the limits of liability required in Wisconsin, the state where Ostlund's vehicles were garaged, under Wisconsin's Financial Responsibility Act.

¶ 17. Unrau's insurer, MPIC, provided liability coverage for Unrau's vehicle. The tort damages available under Manitoba law and covered by MPIC include: recovery by "[a] full-time earner" of an income replacement indemnity "equal to 90% of his or her net income computed on a yearly basis," subject to an annual maximum of $55,000 ($37,800 U.S.) (Act §§ 81(1), 111(1) and 114(1) and (2)); payment of up to $100,000 ($68,728 U.S.) for "permanent impairment," (Act § 127) with less than full permanent impairment compensated as a percentage of this sum (Act § 129(1) and (2)); and payment of "medical and paramedical care, including transportation and lodging for the purpose of receiving the care" without any maximum limit of liability (Act § 136(D).

¶ 18. The limits of liability required by the Wisconsin Financial Responsibility Act are $25,000 per person and $50,000 per accident. WlS. Stat. § 344.15(1); see also Keane v. Auto-Owners Ins. Co., 159 Wis. 2d 539, 542, 464 N.W.2d 830 (1991).

¶ 19. MPIC's liability coverage pays for medical expenses without any upper limit. It pays income replacement to an "annual" limit exceeding $25,000. MPIC has already paid more than $25,000 to Ostlund and his subrogee for Ostlund's bodily injury. Thus, Unrau's liability coverage with MPIC is greater than the $25,000 required by Wisconsin's Financial Responsibility Act. Unrau's vehicle is not an "uninsured motor vehicle" under WlS. Stat. § 632.32(4)(a) or under the plain, unambiguous language of State Farm's policies.

¶ 20. Although the supreme court in Hull held that the term "uninsured motor vehicle" in a State Farm policy was ambiguous, there are factual and contextual differences between this case and Hull. In Hull, the owner and driver of an "at-fault" vehicle were different individuals. One of them had liability coverage and the other did not. In those circumstances, the court concluded that the absence of liability coverage for either one was sufficient to trigger the injured parties' uninsured motorist coverage. Hull, 222 Wis. 2d at 645-46 ¶¶ 25-26. In that situation, where it was not clear under the policy's terms whether the coverage applied, the court found ambiguity and construed the policy to provide coverage, because its failure so to do would have contravened the legislative purpose of the statute.

¶ 21. Here, Unrau was both the owner and driver of the vehicle. He had liability insurance at the time of the accident. For the reasons discussed above, we conclude that the term "uninsured vehicle" is not ambiguous within the circumstances of this case. We further conclude that the limits of liability applicable to Unrau's vehicle at the time of the accident exceed the minimum liability insurance requirements of Wisconsin's Financial Responsibility Act. Therefore, there being no material facts at issue, we affirm the trial court's granting of summary judgment in favor of State Farm on this issue.

¶ 22. We consider next whether the underin-sured motorist clauses in Thomas Ostlund's insurance policies apply to the facts of this case. The underin-sured motorist insuring clauses, which are the same in both policies, provide in material part: "We [State Farm] will pay damages for bodily injury an insured [Ostlund and Gillette] is legally entitled to collect from the owner or driver [Unrau] of an underinsured motor vehicle."

¶ 23. At the time of the accident, underinsured motor vehicle coverage was not mandated by Wisconsin law. An "underinsured motor vehicle" is defined in the policy as a vehicle for which the owner and driver are covered by liability insurance but with limits of liability which "are less than the amount of the insured's damages." The policies provide that underin-sured motorist benefits are not payable: "UNTIL THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS." Upon exhaustion of those limits of liability, State Farm will pay "the difference between the amount of the insured's damages for bodily injury, and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury."

¶ 24. State Farm thus promises to pay its insureds the difference between the maximum amount they are able to collect from a tortfeasor's liability insurer, and the amount they are legally entitled to collect as damages from the tortfeasor and/or his liability insurer. The policy contemplates the following analysis to resolve the issue:

Deciding Fault and Amount
Two questions must be decided by agreement between the insured and us:
1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle-, and
2. If so, in what amount?

¶ 25. The term "legally entitled to recover" has been interpreted by the Wisconsin Supreme Court in Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 171 N.W.2d 914 (1969). In Sahloff, the court held that the phrase "legally entitled to recover" "was used only to keep the fault principle as a basis for recovery against the insurer and deals with the question of whether the negligence of the uninsured motorist and the absence of contributory negligence is such as to allow the insured to recover." Id. at 68-69.

¶ 26. In this case, the parties agree that Ostlund and Gillette were not negligent. Therefore, using fault principles as the basis for recovery, they are legally entitled to collect from Unrau.

¶ 27. Were the issue so simple, our analysis would end. However, in Manitoba, the injured party may not collect damages for pain and suffering or for any other noneconomic injury. Ostlund and Gillette seek to recover their noneconomic damages from State Farm even though they cannot recover such damages from Unrau under Manitoba law.

¶ 28. Sahloff is instructive. There the court held as follows:

Although the phrase "legally entitled to recover" appears both in Wis. STAT. § 204.30(5)(a) [renumbered Wis. STAT. § 632.32(4)(a)], and in the uniform uninsured motorist coverage, we find no basis in the history of the statute or of the endorsement that coverage should be restricted to those situations in which the insurer can stand in the shoes of the uninsured motorist. The purpose and intent of this type of coverage was to benefit the insured so that he would be reimbursed for his injuries. The purpose was not to provide free liability insurance for an otherwise uninsured motorist; and the endorsement does not do so because a right of subrogation does exist, if the insurer wishes to preserve it. In settling a claim under the endorsement, the insurer does not represent the uninsured motorist but rather itself on its own contract against its own insured who has paid a premium for this indemnity feature in his liability policy. It is neither necessary under the coverage nor desirable public policy to place the indemnity insurer in exactly the same position of a liability insurer of an uninsured motorist. Consequently the claim against the insurer on the endorsement should be and is treated differently than the cause of action the insured has against the uninsured motorist.
We are not sympathetic with the argument that because the plaintiffs claim against his insurer is founded upon the negligent tort of the uninsured motorist it should be governed by the same considerations as an action for negligence. This is another phase of the argument that the insurer stands in the shoes of the uninsured motorist and therefore should have all his rights. The insurer has not so contracted in the uninsured motorist endorsement. We think it clear the action by an insured against his insurer under the uninsured motorist endorsement is an action on the policy and sounds in contract although in order to recover the insured must prove the negligence of an uninsured motorist. Western Casualty's argument to base an interpretation upon the considerations of the tort action would invoke a new standard of construction of contractual language.

Sahloff, 45 Wis. 2d at 69-70 (emphasis added).

¶ 29. We conclude that there are only two requirements under the contract for the underinsured motor vehicle coverage to be triggered: (1) causal negligence on the part of an underinsured motorist, and (2) damages resulting from the accident that the at-fault motorist's insurance does not cover.

¶ 30. These two requirements are conceded by State Farm. Therefore, the underinsured motor vehicle coverage is applicable here, and we conclude that its application is wholly independent of any restrictions imposed by the applicable law in the state or territory where the accident occurred which limits or restricts an insured's ability to recover damages from the tortfeasor.

¶ 31. As was stated in Sahloff, it is neither necessary under the policy language, nor desirable public policy, to place State Farm in exactly the same position as Unrau or MPIC. State Farm has not preserved for itself in its contract with Ostlund all of Unrau's rights or immunities. Ostlund has paid a premium for under-insured motorist indemnity coverage in State Farm's liability policy. By use of the language "legally entitled to collect," State Farm did not embrace, for itself, all the rights of the at-fault underinsured motorist and, as drafter of the contract, it was in a position to do so, had that been the intent.

¶ 32. State Farm also argues that because the limits of liability of Unrau's policy have not been "used up," the underinsured coverage in the State Farm policies is not available. We disagree. It is true that a claim for underinsured motorist benefits is precluded by Wisconsin case law, which interprets similar contract provisions, if a claimant settles the liability portion of the claim for less than the policy limits. It is undisputed, however, that Ostlund and Gillette will not be able to recover noneconomic damages from Unrau's liability carrier. As a result, the policies' requirement that "THERE IS NO COVERAGE UNTIL THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS" does not preclude Ostlund and Gillette from claiming noneconomic damages from State Farm.

¶ 33. We conclude that the clause requiring Unrau's liability coverage to be "used up" is not ambiguous in this policy. See Danbeck v. American Family Mut. Ins. Co., 2000 WI App 26, ¶ 10, 232 Wis. 2d 417, 605 N.W.2d 925 (Ct. App. 1999), review granted, 2000 WI 36, 234 Wis. 2d 175, 612 N.W.2d 732. The contract clause is wholly unrelated to Manitoba's legislation which bars noneconomic damages recovery in motor vehicle accidents. Therefore, underinsured motorist benefits are not precluded by this provision.

CONCLUSION

¶ 34. We conclude that Ostlund and Gillette are not entitled to uninsured motorist benefits under the policy and affirm that portion of the trial court's ruling. We conclude, however, that Gillette and Ostlund are entitled to underinsured motorist benefits under the policy, and therefore reverse that portion of the trial court's decision.

By the Court. — Judgment affirmed in part and reversed in part.

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

        See Manitoba Public Insurance Corporation Act, R.S.M. ch. P215, § 72 (1993) (Can.). We will refer to this statute as the "Act."

       Sec WlS. Stat. ch. 344, and § 632.32(4)(a).

      We adopt the U.S. monetary figures provided above from the trial court's decision. These figures apparently were based on an exchange rate of $1.00 U.S. equal to $1,455 Canadian.

       Insurers are now required to offer underinsured motorist coverage by Wis. Stat. § 632.32(4m). This statute first applied to policies renewed after October 1, 1995. The applicable renewal of Ostlund's policies did not occur until after the October 11, 1995 accident.

       If this difference is greater than the policy limits for underinsured motor vehicle coverage, the limits of liability of the coverage define appellants’ maximum recovery.

       The phrase used in the State Farm policy is "legally entitled to collect." We discern no significant legal distinction between the two phrases.

       While the court in Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 171 N.W.2d 914 (1969) construed the phrase as applicable to uninsured motorist coverage, we conclude the construction is equally applicable to underinsured motorist coverage.

       We note that the policy provides that the "loss of earnings coverages apply anywhere in the world," and that coverage was specifically provided in Canada.

        See Davis v. American Family Mut. Ins. Co., 212 Wis. 2d 382, 386, 569 N.W.2d 64 (Ct. App. 1997), and American Family Mut. Ins. Co. v. Powell, 169 Wis. 2d 605, 608, 48 N.W.2d 537 (Ct. App. 1992).