author:
VERGERONT, J.
      ROGGENSACK, J.

text:
    In re the Marriage of: Theresa Ann Bushelman, Petitioner-Respondent, v. William Henry Bushelman, Respondent-Appellant.
    Court of Appeals

      No. 00-0670.

      Submitted on briefs November 7, 2000.

    Decided May 3, 2001.

    2001 WI App 124
    (Also reported in 629 N.W.2d 795.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Richard J. Ward of Stem, Skiles & Ward of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the briefs oí Kimberly P. Sebranek of Eustice, Lajfey & Shetlander, S.C. of Sun Prairie.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.
   VERGERONT, J.

¶ 1. William Bushelman, a resident of Arizona at the time Theresa Bushelman filed this divorce action, moved to dismiss on the grounds of lack of personal jurisdiction. He appeals the trial court's order denying his motion, contending there is no statutory basis for jurisdiction over his person and his contacts with Wisconsin are insufficient to satisfy due process. We conclude William's contacts with Wisconsin do not satisfy the requirements of either WlS. Stat. § 801.05(l)(d) (1999-2000) or the due process clause, and we therefore reverse.

BACKGROUND

¶ 2. The relevant facts were established either by the parties' affidavits or by evidence Theresa presented at an evidentiary hearing, and most are not in dispute. Theresa and William were married in April 1989 in Arizona and their two children were born there, the first in 1990 and the second in 1991. Theresa was raised in Wisconsin, but William has never resided here. In May 1991, and again in May 1993, she and William traveled to Wisconsin to visit her sister and other relatives. They brought their older child with them on the first trip and stayed for one week to ten days; on the second trip they brought both children and stayed ten days. In August 1994, Theresa came to Wisconsin to visit her sister with the two children and was here five days. During that time she was hospitalized, and William came to Wisconsin to help her and the two children return to Arizona, staying here two days.

¶ 3. Sometime after August 1994 and before October 1996, William was sentenced to prison and incarcerated. Theresa and the children moved to Erie, Pennsylvania, and then, in October 1996, while William was still incarcerated, they moved to Wisconsin. They have resided here since. While William was in prison, he called the children once a week in Wisconsin, and after he was released, he called them twice a month, also speaking to Theresa. He also frequently called Theresa's sister to see how Theresa and the children were doing. He has written many letters to Theresa since she has lived in Wisconsin. In April 1998, William began sending child support of $200 to $250 each month. He came to Wisconsin to visit Theresa and the children in October 1998 and stayed one week.

¶ 4. Theresa filed this divorce action on May 26, 1999, seeking custody, child support, maintenance, property division, and attorney fees; she filed a motion for a temporary order at the same time. William was served on July 8,1999, with the summons, petition for divorce, and motion in Arizona where he was then residing. He moved to dismiss on the ground of lack of personal jurisdiction.

¶ 5. William did not appear at the hearing on the motion but was represented by counsel. Theresa, her sister, and her brother-in-law presented testimony that established the facts recited above. In addition, the court accepted into evidence the cover sheet of a case report from the Sun Prairie Police Department indicating that on August 29, 1994, William asked an officer to accompany him to pick up his two children from Theresa's sister's house. On cross-examination, Theresa testified it was her decision and William's decision that she move to Wisconsin with the children; he said "it was fine that I moved to Wisconsin"; he directed her to move to Wisconsin; and he told her to take the children to Wisconsin and take care of them there. This contradicted the averment in William's affidavit that hé "did not direct that my children reside in the state of Wisconsin."

¶ 6. The court recognized there was a dispute over whether William had directed Theresa to live in Wisconsin or had merely consented that she do so. It found William had "supported Tess and the kids to come to this community so that she can receive support from her family." The court concluded it did have personal jurisdiction over William under WlS. STAT. § 801.05(l)(d) because William had carried on substantial and not isolated activities within the state. The court also determined that William's visits to Wisconsin, his consent that Theresa live here with the children, his phone calls, letters, and payment of child support, and his availing himself of the services of the Sun Prairie Police Department were activities related to his family, which was the subject of the divorce action, and the court decided these activities were sufficient to meet the constitutional standard for subjecting William to the jurisdiction of the courts of Wisconsin.

DISCUSSION

¶ 7. In order for a Wisconsin court to have jurisdiction over a person, there must be a statutory basis for personal jurisdiction, and the application of that statute to the individual must meet the requirements of due process. Lincoln v. Seawright, 104 Wis. 2d 4, 10, 310 N.W.2d 596 (1981). Due process requires that in order for a court to have jurisdiction over the defendant, there must be sufficient contact between the defendant and the forum state to make it fair that the defendant have to defend the action in that state. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Because Wis. Stat. § 801.05, Wisconsin's "long-arm statute," represents an attempt to codify the rules regarding minimum contacts for personal jurisdiction established in International Shoe, compliance with a section of this statute is "prima facie compliance" with the due process requirements. Lincoln, 104 Wis. 2d at 10. However, the presumption of compliance with due process arising from § 801.05 may be rebutted by a defendant, and courts have used a five-factor test to analyze the substantiality of the defendant's contacts for due process purposes: the quantity of the contacts, the nature, and quality of the contacts, the source of the cause of action and its connection with those contacts, the interest of Wisconsin in the action, and convenience to the parties. Lincoln, 104 Wis. 2d at 11 (citing Zerbel v. H.L. Federman & Co., 48 Wis. 2d 54, 64-65, 179 N.W.2d 872 (1970)). The burden is on the party filing the action to establish personal jurisdiction. Id. at 9.

¶ 8. William contends on appeal, as he did before the trial court, that there is no statutory basis for personal jurisdiction because in an action affecting the family, Wis. Stat. § 801.05(l)(d) applies only to activities that are business or employment related, and there is no other applicable statutory basis. Alternatively, he argues that even if § 801.05(l)(d) is not so construed, its application to him violates due process requirements.

¶ 9. We consider first William's argument that Wis. Stat. § 801.05(l)(d) applies only to business or employment related activities when the action is one affecting the family. WISCONSIN Stat. § 767.05(1) provides that "[a] court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under ch. 769 [Uniform Interstate Child Support Act] or 801." Theresa did not contend in the trial court that any jurisdictional provision in Wis. Stat. ch. 769 was applicable to William, and we therefore turn our attention to Wis. Stat. ch. 801.

¶ 10. Wisconsin Stat. § 801.05(11) provides in part:

Certain MARITAL ACTIONS. In addition to personal jurisdiction under sub. (1) and s. 801.06, in any action affecting the family, except for actions under ch. 769, in which a personal claim is asserted against the respondent commenced in the county in which the petitioner resides at the commencement of the action when the respondent resided in this state in marital relationship with the petitioner for not less than 6 consecutive months within the 6 years next preceding the commencement of the action and the respondent is served personally under s. 801.11. (Footnote added.)

Section 801.05(1), to which § 801.05(11) refers, provides:

Personal jurisdiction, grounds for generally. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances:
(1) Local presence OR STATUS. In any action whether arising within or without this state, against a defendant who when the action is commenced:
(a) Is a natural person present within this state when served; or
(b) Is a natural person domiciled within this state; or
(c) Is a domestic corporation or limited liability company; or
(d) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise.

William contends para. (l)(d) should be construed to provide a basis for personal jurisdiction in an action affecting the family only where the activities are not family related but are business or employment related. He contends that if the activities in Wisconsin are family related, the six months within six years requirement of § 801.05(11) must be met when maintenance is sought, and the requirements of Wis. Stat. § 769.201 must be met when child support is sought. This construction is necessary, William contends, because otherwise §§ 769.201 and 801.05(11) are superfluous.

¶ 11. William's argument presents a question of statutory construction, an issue of law which we review de novo. Wisconsin Dept. of Revenue v. Milwaukee Brewers Baseball Club, 111 Wis. 2d 571, 577, 331 N.W.2d 383 (1983). The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Kelley Co., Inc. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992). If the words of the statute convey the legislative intent, that ends our inquiry. Id. We do not look beyond the plain language of a statute to search for other meanings; we simply apply the language to the case at hand. Id.

¶ 12. Wisconsin Stat. § 767.05(1) refers to Wis. Stat. ch. 801 as a jurisdictional alternative to Wis. Stat. ch. 769 for actions affecting the family, and does not specify any section or subsection within ch. 801. Wisconsin Stat. § 801.05(11) specifically addresses "action[s] affecting the family ... in which a personal claim is asserted against the respondent." This subsection plainly provides that "sub 1" is a basis for jurisdiction in such actions. In McAleavy v. McAleavy, 150 Wis. 2d 26, 33, 440 N.W.2d 566 (1989) (decided before § 801.05(11) had been amended to add reference to ch. 769), the supreme court interpreted § 801.05(11) to provide for three independent sources of personal jurisdiction: the six months within six years test stated in that section, and the "additional, alternative sources of personal jurisdiction set forth in sec. 801.05(1) and sec. 801.06." There is no indication in McAleavy or the language of § 801.05(11) that § 801.05(l)(d) is not included by the reference to "sub (1)"; nor is there any indication that the application of para. (l)(d) is to be limited in any particular way.

¶ 13. There is also no indication in the language of either Wis. Stat. §§ 801.05(11) or 769.201 that § 801.05(l)(d) is not available as a basis for jurisdiction when child support is sought. Indeed, § 769.201(8) provides that courts of this state have personal jurisdiction over non-residents in proceedings under that chapter if "[t]here is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction."

¶ 14. We do not agree with William that WlS. Stat. § 801.05(l)(d) renders Wis. Stat. §§ 801.05(11) and 769.201 superfluous if it may apply to family related activities in Wisconsin. As William points out elsewhere in his brief, under § 801.05(l)(d), "when the action is commenced" (emphasis added), the defendant must be "engaged in substantial and not isolated activities within this state." That is a requirement distinct from having lived in Wisconsin for six consecutive months in a marital relationship during the last six years in Wisconsin. Section 801.05(11) requires no engagement in any activity in Wisconsin at the time the action is commenced: under § 801.05(11) a defendant could have lived in Wisconsin in a marital relationship five years ago for six consecutive months, and have had no contact with Wisconsin since that time. Similarly, a parent may have resided with his child in Wisconsin a number of years ago, thereby providing a basis for jurisdiction under § 769.201(3), but may not have had any contact with this state since then. The fact that there are some situations in which there is jurisdiction under more than one statutory provision does not make one or the other superfluous.

¶ 15. We conclude the plain language of WlS. Stat. §§ 767.05, 801.05(1) and (11), when read together, provide that § 801.05(l)(d) may be a basis for personal jurisdiction over a respondent in a divorce action seeking child support, maintenance, and attorney fees, and the activities that may satisfy the requirements of para. (l)(d) are not limited to business or employment related activities.

¶ 16. We next consider whether William's activities are sufficient to satisfy the requirements of Wis. Stat. § 801.05(l)(d). This subsection is an attempt to define that "presence" of the defendant in a state required as one possible basis for personal jurisdiction consistent with due process under International Shoe. Hasley v. Black, Sivalls & Bryson, Inc., 70 Wis. 2d 562, 576, 235 N.W.2d 446 (1975). This subsection is in contrast to the other possible grounds that are based on specific acts within the state out of which the cause of action arises or to which the cause of action relates. Id.; see also Nagel v. Crain Cutter Co., 50 Wis. 2d 638, 646-47, 184 N.W.2d 876 (1971). Because the subsections of § 801.05 are intended to be consistent with due process, courts may sometimes utilize the due process analysis to resolve a question of statutory construction. See Hasley, 70 Wis. 2d at 576-77. For example, if there is a question whether certain activities are "substantial" within the meaning of § 801.05(1)(d), deciding whether due process would allow for personal jurisdiction based on those activities will resolve the question of statutory construction. Id. However, we may not ignore the explicit provisions of the long-arm statute. Lincoln, 104 Wis. 2d at 14. While the statute is to be liberally construed in favor of exercising jurisdiction, id. at 9, if we interpret the language too broadly, "we risk losing the appropriate minimum contacts which are 'built in' to the statute," id. at 14.

¶ 17. On appeal, we do not set aside the trial court's findings of fact unless they are clearly erroneous; however, we review de novo whether those facts meet the statutory and due process requirements for personal jurisdiction. Paula M.S. v. Neal A.R., 226 Wis. 2d 79, 83, 593 N.W.2d 486 (Ct. App. 1999).

¶ 18. Our analysis begins with a discussion of two previous decisions of this court—Davanis v. Davanis, 132 Wis. 2d 318, 330, 392 N.W.2d 108 (Ct. App. 1986), and McCarthy v. McCarthy, 146 Wis. 2d 510, 431 N.W.2d 706 (Ct. App. 1988) — and the United States Supreme Court decision on which we relied in Davanis—Kulko v. Superior Court of California, 436 U.S. 84 (1978). William contends Davanis and Kulko support his position and that McCarthy is "difficult if not impossible to reconcile" with those two decisions. Theresa counters that McCarthy supports her position, and the facts in Davanis and Kulko are distinguishable from those in this case.

¶ 19. In Kulko, the issue was whether the father of two children who were living in California with their mother had sufficient contacts with California to satisfy due process. The parties were both residents of and domiciled in New York when they married in 1959 during a three-day stopover in California. The wife returned to New York then, and the husband returned to New York after his military service in a third state. They lived together in New York, where their two children were born, until March 1972. They separated then and the wife moved to California. Under a written separation agreement signed in New York in September 1972, the children were to remain with their father during the school year and with their mother during summer vacations and holidays, and the husband was to pay $3,000 per year in child support. The wife obtained a divorce in Hawaii based on this legal separation. In December 1973, their daughter told her father she wanted to live with her mother. He bought her a one-way plane ticket to California and she flew to California and began residing with her mother. In January 1976, their son told his mother he wanted to live with her in California so she sent him a plane ticket unbeknownst to the father, and their son flew to California to live with his mother. One month later, the mother filed an action to establish the Hawaii decree as a California judgment and a motion for modification to give her full custody of both children and increase support.

¶ 20. The Supreme Court held that subjecting the father to the jurisdiction of the California courts would violate due process. Due process requires, the Court stated, that the defendant engaged in an act by which he or she purposefully avails himself or herself of the privilege of conducting activities in a foreign state. Kulko, 436 U.S. at 93 — 94. The Court determined that the father's agreement to let the children live with their mother in California did not constitute such an act. Id. at 94. The Court also observed that the action the wife filed arose from the separation agreement that was executed in New York, and the State of California had no connection with that agreement. It rejected the argument that the father derived a personal benefit from having his children live in California because he did not have to support them in his household. Finally, the Court stated that fairness favored litigation in New York because the father had remained there and the mother had moved. Id. at 95-96.

¶ 21. In Davanis, we relied on Kulko to conclude that the respondent in a post-judgment motion to increase child support did not have sufficient contacts with Wisconsin to satisfy due process. The parties married in Wisconsin in 1970. The marriage certificate listed the husband as a resident of California at the time and in the armed forces. A few months after their marriage, in January 1971, they moved to California. They were both California residents at the time their divorce proceeding began there in 1979. During the marriage, they returned to Wisconsin with their child for at least two weeks in 1971, 1973, and 1976. While the divorce proceeding was pending, the wife moved to Wisconsin with their child. The parties entered into a stipulation, which the wife signed in Wisconsin, providing that the wife was to have custody of the child and was to receive child support payments in Wisconsin, and this was incorporated into the divorce judgment entered in California. The husband "provided for travel to and from Wisconsin for the minor child." In 1983, the wife filed a summons and petition in Wisconsin requesting registration of the California divorce judgment, and in 1984, she filed a motion to increase child support.

¶ 22. We decided that the marriage in Wisconsin, the brief residence in Wisconsin at that time, and the three visits to Wisconsin were not sufficient contacts for personal jurisdiction to attach. We also decided that, "by stipulating to child custody in Wisconsin, visitation in Wisconsin, making support payments in Wisconsin and the property division, [the husband] did not purposefully avail himself of the privilege of conducting activities within Wisconsin." Davanis, 132 Wis. 2d at 333. Finally, we concluded that considerations of fairness favored the husband's domicile as the proper forum because he had remained in the state of marital domicile, while the wife had moved to Wisconsin. Id. at 334.

¶ 23. In McCarthy, we decided that the respondent in a post-judgment motion to increase child support had sufficient contacts to satisfy the requirements of Wis. Stat. § 801.05(l)(d) and due process. The parties in that case were married in Wisconsin in 1971 and lived here until September 1978, when they moved to Oklahoma. The mother returned with the two children to Wisconsin in January 1979. A judgment of divorce was entered by an Oklahoma court in October 1979, and the father remained a resident of Oklahoma. In 1987, the father was in Wisconsin three times during which he visited the children and, on the September 1987 trip here, he was personally served with a motion to increase child support.

¶ 24. We applied the five-factor test in this manner:

In 1987, John visited his children in Wisconsin during two holiday periods and during an unanticipated trip to Wisconsin in September. The nature of the contact involves the exercise of visitation. That type of contact impacts upon the parent/child relationship, certainly an important and valued relationship. The cause of action, while not a visitation dispute, does involve the children and, thus, is closely related to John's contacts with Wisconsin. Wisconsin's interest in an adequate level of child support is great. The convenience factor cuts evenly with regard to both Wisconsin and the alternate forum of Oklahoma.

McCarthy, 146 Wis. 2d at 514. In distinguishing Davanis and Kulko, we explained that neither of those cases involved the exercise of visitation in the forum state, while in this case, the father's "periodic presence in Wisconsin constitutes purposeful acts which render it fair to require the resolution of this child support dispute in Wisconsin." Id. at 515.

¶ 25. We do not agree with William's suggestion that McCarthy cannot be reconciled with Davanis and Kulko. As we explained in McCarthy, the father's three trips to Wisconsin to visit his children were purposeful acts on his part; thus, his contact with Wisconsin was not simply the fact that he had agreed to his wife having custody of his children in Wisconsin and agreed to paying support for them while they resided here. Moreover, these three visits occurred in the same year the action commenced, with the last occurring on the date he was served. This is significant because under Wis. Stat. § 801.05(l)(d) the defendant must be "engaged in substantial and not isolated activities" "when the action is commenced." The visitations of the children in McCarthy meet this requirement.

¶ 26. In contrast, in Davanis the brief residence in Wisconsin more than ten years before the action for an increase in child support was commenced, and the three family trips to Wisconsin that occurred during the marriage, with the last trip occurring six years prior to the commencement of the action, are not activities engaged in "when the action is commenced." Correspondingly, the lapse of time in Davanis between the visits to Wisconsin and the commencement of the action, as well as the purpose of the visits, is reflected in the difference in our application of the five-factor due process analysis in Davanis and McCarthy, the three family trips occurring over a number of years during the marriage, with the last occurring years before the action commenced, compared to the three trips during the year in which the action commenced for the purpose of visiting the children who are the subject of the support action.

¶ 27. Turning to the facts of this case in light of Kulko, Davanis and McCarthy, we first conclude that William's consent that his children live in Wisconsin with Theresa is not an act by which he has purposefully availed himself of the privilege of conducting activities in Wisconsin. We recognize the facts in this case differ from those in the three foregoing cases in that Theresa did not choose to leave Arizona with the children while William remained there; rather, the entire family left Arizona for Pennsylvania, apparently because of William's incarceration, and Theresa moved to Wisconsin with the children from Pennsylvania while William was still incarcerated. However, although Theresa testified William directed her to go to Wisconsin with the children to live, the court did not find that he had done so. Instead, it found William consented that she live in Wisconsin with the children. This factual finding is not clearly erroneous. We therefore conclude that, based on the facts as found by the trial court, the children's residence in Wisconsin was not the result of a purposeful act by which William availed himself of the privilege of conducting activities in Wisconsin.

¶ 28. In Davanis, we also held that sending child support payments to Wisconsin was not a purposeful act availing the payer of the privileges of conducting activities in Wisconsin, as required by due process. From the standpoint of the constitutional analysis in Kulko and Davanis, we see no principled basis for distinguishing between sending child support payments for one's children in another state, on the one hand, and, on the other hand, telephone calls and letters to one's children in another state or to others there inquiring about the children. Therefore, we conclude the child support payments and letters William sent to Wisconsin and his telephone calls to Wisconsin are not acts by which he availed himself of the privilege of conducting activities within Wisconsin.

¶ 29. We acknowledge the logic of Theresa's argument that William benefits by virtue of his children benefiting from the schools and other services they enjoy in Wisconsin, and that, since William consented that Theresa and his children live in Wisconsin, he could reasonably expect Wisconsin would be a forum for any action involving the children. We also acknowledge that the analytical framework in Kulko, which we applied in Davanis, is not entirely satisfactory for resolving questions of personal jurisdiction in family matters involving children, given the mobility of families today, the high incidence of divorce and separation, and the myriad of circumstances that affect where the parent with the children chooses to live after the family separates. Nevertheless, we are bound by Kulko and Davanis.

¶ 30. Theresa contends that, even if William consented to Theresa having custody in Wisconsin, and the child support payments, letters, and telephone calls do not, standing alone, confer personal jurisdiction over William, we may consider these, along with his visits to Wisconsin, in deciding whether his activities meet the requirements of Wis. Stat. § 805.01(l)(d) and due process. We do not agree. If a type of conduct — such as consent that one's children live in a state — is not conduct that is á purposeful act as required by Kulko, we do not see how it can be one of the "contacts" with the state for due process purposes, or one of the activities we consider under § 801.05(l)(d). We therefore turn our attention to William's visits to Wisconsin, which are the primary focus of Theresa's argument.

¶ 31. As we have noted above, Wis. Stat. § 801.05(l)(d) requires that William be "engaged in substantial and not isolated activities within this state" "when the action [was] commenced" in May 1999. His last visit occurred in October 1998 when William came to visit his children after he was living separately from them. The first three occurred in 1991, 1993, and 1994 respectively, while William was living with his children, and involved visits to Theresa's relatives in Wisconsin. Four visits over this time period do not constitute an ongoing activity in which William was engaged at the time this action was commenced, as was the case in McCarthy. Indeed, the first three visits, besides occurring years before the action commenced, were not related to this divorce action at all, except insofar as the divorce action concerns William's family and he made those trips with his family. Therefore, even if we ignore the statutory language of "when the action commences," as Theresa does in her analysis, and consider only the five Zerbel factors, we do not agree with Theresa that there is a significant connection between the nature of those three visits and this action.

¶ 32. We agree there is a closer connection between the October 1998 visit and this action, both in time and in purpose of the visit. The purpose of that visit was to see his children and the purpose of this action is in part to resolve questions concerning the custody, visitation, and support of the children. However, this one visit, taking place seven months before the action was commenced, is an isolated instance of his visiting his children rather than periodic and ongoing visitation, as was the case in McCarthy.

¶ 33. In summary, we conclude William's contacts with Wisconsin do not meet the requirements either of Wis. Stat. § 801.05(l)(d) or the due process clause. Therefore, the trial court does not have personal jurisdiction over William. Accordingly, we reverse the decision of the trial court and remand with directions to dismiss the petition for divorce.

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

ROGGENSACK, J.

¶ 34. (dissenting). Because I do not agree with the majority opinion that it would be unfair to William Bushelman to require him to respond to his wife's divorce action in Wisconsin and because I conclude that Wisconsin's long arm statute, Wis. Stat. § 801.05(l)(d), does confer personal jurisdiction over him under the facts of this case, I must respectfully dissent.

¶ 35. The majority concludes that William has had insufficient contacts with Wisconsin to show he "purposefully availed himself of the privilege of conducting activities in Wisconsin;" and therefore, Wisconsin courts cannot exercise personal jurisdiction over him under Wis. Stat. § 801.05(1)(d). It does so by isolating each contact William has had with Wisconsin and, one by one, concluding that each is insufficient to support personal jurisdiction. I conclude that analysis is erroneous because the five-factor due process test set out in Zerbel v. H.L. Federman & Co., 48 Wis. 2d 54, 64-66, 179 N.W.2d 872, 878-79 (1970), requires consideration of all the factors collectively to determine whether, as an aggregate, they are sufficient to comport with the requirements of due process necessary to exercise personal jurisdiction. Id. at 65, 179 N.W.2d at 878. Zerbel requires us to examine: "the quantity of contacts with Wisconsin, the nature and quality of the contacts, the source of the cause of action and its connection with those contacts, the interest of Wisconsin in the action, and convenience." McCarthy v. McCarthy, 146 Wis. 2d 510, 514, 431 N.W.2d 706, 708 (Ct. App. 1988) (citing Zerbel, 48 Wis. 2d at 64-66, 179 N.W.2d at 878). If the requirements of due process are satisfied, so too are the statutory standards of "substantial and not isolated activities" required by § 801.05(1)(d). McCarthy, 146 Wis. 2d at 513, 431 N.W.2d at 707 (citing Hasley v. Black, Sivalls & Bryson, Inc., 70 Wis. 2d 562, 575, 235 N.W.2d 446, 453 (1975)).

¶ 36. In my view, the undisputed facts of record considered as an aggregate under Zerbel support the conclusion that exercising personal jurisdiction over William comports with due process. Here, the record shows that Theresa and the children moved to Wisconsin while William was in federal prison in Pennsylvania. William was familiar with the environment into which he consented that his wife and children move. He had visited Theresa's family in Wisconsin several times before October 1996, when Theresa moved here. On one of those visits, William flew to Wisconsin, rented a car, drove to Sun Prairie and enlisted the services of the Sun Prairie police department in retrieving his children from the home of his sister-in-law, Sandra Rodriguez. Additionally, he telephoned to Wisconsin to speak with the children and Theresa weekly when he was in prison and twice monthly after his release. Beginning in April 1998, William mailed monthly child support payments of $200 - $250 per month to Theresa in Wisconsin. Furthermore, he exercised visitation in Wisconsin for one week in October of 1998; Theresa's petition for divorce was filed only six months later. The quantity of his contacts with Wisconsin were numerous, not incidental.

¶ 37. Additionally, the nature of those contacts all related to William's family, and Theresa's cause of action involves only family matters. Each of William's contacts impacted upon his parent/child relationship, from seeking the assistance of a Wisconsin police force to obtain custody of his children, to exercising visitation here. Furthermore, William committed the illegal acts that caused him to be sentenced to federal prison in Pennsylvania, and that imprisonment impacted on Theresa and his children, causing them to move to Wisconsin so Theresa's family could help her with the children. Theresa did not voluntarily break up a household she and William were maintaining with the children in Arizona. That William should have to meet an action in Wisconsin that seeks relief for his family is not unfair to him, as his family has been living in Wisconsin for four and one-half years as a direct result of his actions.

¶ 38. Furthermore, Wisconsin has a strong interest in providing adequate and regular child support for children who reside within its borders. McCarthy, 146 Wis. 2d at 514, 431 N.W.2d at 708. Wisconsin is also the most convenient forum for this action because all of the children's school records and recent medical histories are here. Furthermore, neither party now resides in Arizona where they were married. William resides in Texas, where Theresa and the children have never lived. And finally, the record reflects that Theresa's attorney is representing her on a pro bono basis and that she was given court permission to file this action without the payment of fees because she is indigent. Therefore, as a practical matter, there is no forum in which she can bring an action for divorce and support if Wisconsin is not a proper forum. On the other hand, William has retained competent counsel and, though he chose not to appear by telephone at the hearing before the circuit court, that option was offered to him. Therefore, I conclude that the aggregate of the Zerbel factors demonstrates that requiring William to meet this action in Wisconsin, as the circuit court did, would not deny him due process of law. Accordingly, because I would affirm its decision, I respectfully dissent.

       We granted William's petition for leave to appeal the trial court's order.

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

       The other requirement of due process — that there be reasonable notice to the defendant that an action has been brought, see International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945) — is not at issue in this case.

       Wisconsin Stat. § 769.201 provides:
      Bases for jurisdiction over nonresident. In a proceeding under this chapter to establish, enforce or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual, or the individual's guardian or conservator, if any of the following applies:
      (1) The individual is personally served with a summons or other notice within this state.
      (2) The individual submits to the jurisdiction of this state by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.
      (3) The individual resided with the child in this state.
      (4) The individual resided in this state and provided prenatal expenses or support for the child.
      (5) The child resides in this state as a result of the acts or directives of the individual.
      (6) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse.
      (7) The individual asserted parentage in a declaration of paternal interest filed with the department of health and family services under s. 48.025 or in a statement acknowledging paternity filed with the state registrar under s. 69.15 (3) (b) 1. or 3.
      (8) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

       We asked the parties to submit supplemental briefing on the question of whether Wis. Stat. § 769.201(5) or any other subsection of § 769.201 is sufficient to establish jurisdiction for purposes of any portion of the action. However, we have decided not to address any basis for jurisdiction other than Wis. Stat. § 801.05(l)(d) because that was the only basis argued by Theresa in the trial court and the factual record necessary for the application of § 769.201(5) was, as a result, not fully developed.

       WISCONSIN Stat. § 801.06 relates to counterclaims and to waiver or the defense of lack of jurisdiction over the person. This section is not involved in this appeal.

       See footnote 4.

       This amendment occurred in 1993. 1993 Wis. Act. 326, §15.

       The parties do not address the statutory basis for personal jurisdiction over William insofar as the petition seeks a judgment of divorce and a division of property. WlS. STAT. § 801.07(5) provides:
      (5) When the action is an action affecting the family under s. 767.02 (1) (a) to (d) and when the residence requirements of s. 767.05 (lm) have been met, a court having subject matter jurisdiction may exercise jurisdiction quasi in rem to determine questions of status if the respondent has been served under s. 801.11 (1).
      WISCONSIN Stat. § 801.11(1) requires that, in addition to proper service, there must be grounds for personal jurisdiction under one of the provisions in Wis. STAT. § 801.05. Mendez v. Hernandez-Mendez, 213 Wis. 2d 217, 224, 570 N.W.2d 563 (Ct. App. 1997). Paragraph (l)(d) is the only provision of § 801.05 that is arguably relevant to this case. Therefore, its requirements must be satisfied in order to have a statutory basis for personal jurisdiction over William for any of the relief sought in the divorce petition.

       For this same reason, when applying the five Zerbel factors in a case where jurisdiction is asserted under Wis. Stat. § 801.05(1), the required substantiality of contact is greater than when jurisdiction is asserted under the other subsections, because those "more specific provisions" contemplate situations in which the cause of action "arises out of' or "relates to" the defendant's contacts with the forum state. Nagel v. Crain Cutter Co., 50 Wis. 2d 638, 646-49, 184 N.W.2d 876 (1971).

       We noted that although the trial court found the husband was never a resident in Wisconsin, there was some evidence he resided there for three months just after the marriage. We stated that, even if the trial court's finding on this point were clearly erroneous, our conclusion would not change. Davanis v.

        Davanis, 132 Wis. 2d 318, 330, 333 n.9, 392 N.W.2d 108 (Ct. App. 1986).

       Although the father was served while in Wisconsin, we declined to decide the case based solely on WlS. STAT. § 805.05(l)(a) and therefore addressed § 805.05(l)(d). McCarthy v. McCarthy, 146 Wis. 2d 510, 513, 431 N.W.2d 706 (Ct. App. 1988).

       In McCarthy, we focused on the due process analysis rather than a statutory analysis because we were concerned only with whether the respondent's activities were "substantial and not isolated." We were not concerned with whether he was "engaged [in these activities] when the action commenced" because he was here visiting his children when the action commenced on September 19, 1987, and there had been two previous visits in 1987. Once we concluded those three visits to his children in Wisconsin were substantial enough to fulfill the due process requirements, we could correctly conclude those visits also satisfied the requirements of WlS. STAT. § 801.05(l)(d).

       We recognize that the following language in Davanis, 132 Wis. 2d at 333, may suggest the father might have visited the child in Wisconsin: "Furthermore, we hold that by stipulating to child custody in Wisconsin, visitation in Wisconsin, making support payments in Wisconsin and the property division, George did not purposefully avail himself of the privilege of conducting activities within Wisconsin." However, a careful reading of Davanis reveals no record of the father actually visiting the child in Wisconsin: the factual summary states only "George provided for travel to and from Wisconsin for the minor child." Id. at 329.

       We observe that WlS. Stat. § 769.201(5) provides for personal jurisdiction over an individual in an action relating to child support when "[t]he child resides in this state as a result of the acts or directives of the individual." Presumably this provision is intended to be consistent with Kulko v. Superior Court of California, 436 U.S. 84 (1978).

       Accordingly, whether these telephone calls and letters would otherwise be "activities within this state" within the meaning of WlS. STAT. § 801.05(1)(d) is an issue we need not address.

       The trial court in its decision noted that the evidence relevant to custody and visitation of the children was in Wisconsin, which may have been a consideration in its decision. However, the fact that a Wisconsin court may be the proper forum to resolve custody and visitation disputes under the Uniform Child Custody Jurisdiction Act (UCCJA) because of the children's presence here is unrelated to the question of whether a Wisconsin court has personal jurisdiction over William. See Paula M.S. v. Neal A.R., 226 Wis. 2d 79,85—87,593 N.W.2d 486 (Ct. App. 1999) (UCCJA does not establish a constitutionally sufficient basis for personal jurisdiction over a non-resident parent; requirements of due process for personal jurisdiction must be met even though the court has subject matter jurisdiction under the UCCJA).

      Due process requires a "sufficient connection" between William and Wisconsin to make it fair to require him to meet Theresa's action in Wisconsin. Kulko v. Superior Court, 436 U.S. 84, 91 (1978).

       At the evidentiary hearing, Theresa gave the only testimony about why she and the children moved to Wisconsin. She responded to William's attorney's questions:
      Q Did he tell you to take the children to Wisconsin?
      A Yes.
      Q He directed to you (sic) take the children to Wisconsin?
      A Yes.
      Q Didn't he tell you to stay in Erie, Pennsylvania when you wanted to take the children back to Wisconsin?
      A No.
      Q He told you to pick up and move to Wisconsin and take the kids several hundred miles away from him?
      A Yes.
      The circuit court did not rule on whether William "directed" or through some other act caused Theresa to bring the children to Wisconsin because Theresa's attorney sought personal jurisdiction for the entire action before the court, rather than arguing in the alternative that WlS. Stat. § 769.201(5) was a basis for personal jurisdiction in regard to child support, at a minimum. However, William's trial court brief listed § 769.201(5) as a potential basis for jurisdiction, and the above questions indicate it was of concern to his counsel.


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    Marshall E. Begel, Plaintiff-Respondent, v. Wisconsin Labor and Industry Review Commission, Defendant-Appellant, University of Wisconsin-Madison and University of Wisconsin System, Defendants-Co-Appellants.
    Court of Appeals

      No. 00-1875.

      Submitted on briefs December 13, 2000.

    Decided May 3, 2001.

    2001 WI App 134
    (Also reported in 631 N.W.2d 220.)

      On behalf of the defendant-appellant, the cause was submitted on the brief oí William W. Cassel of LIR C.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert T. Ward of Ward Law Firm of Milwaukee.
    Before Vergeront, Roggensack and Lundsten, JJ.
   ROGGENSACK, J.

¶1. The Labor and Industry Review Commission (LIRC) appeals the circuit court's reversal of LIRC's decision denying worker's compensation to Marshall E. Begel because LIRC concluded that Begel's injury was not compensable under the Worker's Compensation Act. Because we conclude that no substantial and credible evidence in the record supports LIRC's finding that Begel's supervisor did not ask him to perform the task that resulted in his injury and that LIRC's statutory interpretation of what constitutes the premises of the employer and its interpretation of the private errand doctrine are unreasonable, we affirm the decision of the circuit court reversing LIRC's denial of worker's compensation benefits.

BACKGROUND

¶2. The following facts are undisputed. Begel was pursuing a master's degree in civil and structural engineering at the University of Wisconsin-Madison. While enrolled, he also worked as a research assistant for the University under the supervision of Dr. David Bohnhoff, an associate professor in the University's Biological Systems Engineering Department. The nature of the research Begel performed required him to have periodic face-to-face meetings with Bohnhoff. In May 1997, Bohnhoff began building a new house. He and his family lived in a construction trailer at the construction site where he did not have a phone, and he did not keep regular office hours on campus. As a result, Begel was required by the nature of his employment to travel to the construction site to meet with Bohnhoff about his research. From time to time during his visits to the construction site, in addition to consulting about the research he was performing, Begel helped Bohnhoff work on his house. Bohnhoff did not pay Begel for this assistance.

¶ 3. On June 22, 1997, Begel traveled to the construction site to meet with Bohnhoff for instructions about the research. After they had finished talking about Begel's work, he volunteered to help Bohnhoff and his family attach sheets of paneling to floor joists. Begel stopped this task after approximately 20 minutes, when rain began. Bohnhoff then asked Begel to lift one end of a joist so that the exposed portion of the floor could be covered with a tarp. Begel lifted one end of the joist, then stepped into a hole in the floor and fell nine and one-half feet to the concrete floor of the basement, suffering a spinal cord injury that rendered him quadriplegic.

¶ 4. Begel filed a worker's compensation claim against the University. The University stipulated that an employer-employee relationship existed but disputed whether, at the time of his injury, Begel was performing service growing out of and incidental to his employment. After an evidentiary hearing, the administrative law judge (ALJ) awarded worker's compensation benefits to Begel. LIRC reversed the ALJ's decision, concluding that: (1) Begel had not been injured while performing service growing out of and incidental to his employment because he had volunteered to assist Bohnhoff with tasks unrelated to his job duties; and (2) the injury did not arise out of Begel's employment because he had chosen to remain in the zone of special danger posed by the construction site after he had ceased his work-related activities. The circuit court reversed LIRC, concluding that Begel had responded to a request from his supervisor that he perform a private errand by moving the joist and therefore was covered under the Worker's Compensation Act. LIRC appeals the decision of the circuit court.

DISCUSSION

Standard of Review.

¶ 5. We review the administrative agency's decision rather than that of the circuit court. Currie v. DILHR, 210 Wis. 2d 380, 386, 565 N.W.2d 253, 256 (Ct. App. 1997). Whether an individual's injury was sustained as a result of performing service growing out of and incidental to employment within the meaning of Wis. Stat. § 102.03(1) (1999-2000) is a mixed question of law and fact that requires the application of a statutory standard to findings of fact. Secor v. LIRC, 232 Wis. 2d 519, 527, 606 N.W.2d 175, 178 (Ct. App. 1999). LIRC's findings of historic fact must be upheld on review if there is credible and substantial evidence in the record on which reasonable persons could rely to make the same findings. Currie, 210 Wis. 2d at 386-87, 565 N.W.2d at 256-57; Wis. Stat. § 102.23(6).

¶ 6. Once the facts are established, however, the determination of whether those facts fulfill the statutory standard is a legal conclusion. Keeler v. LIRC, 154 Wis. 2d 626, 632, 453 N.W.2d 902, 904 (Ct. App. 1990). Therefore, we will review LIRC's determination that Begel was not injured while performing services growing out of and incidental to his employment as a question of law. We are not bound by an agency's conclusion of law in the same manner as by its factual findings. West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 11, 357 N.W.2d 534, 539 (1984). However, we may nonetheless defer to the agency's legal conclusion.

¶ 7. An agency's interpretation or application of a statute may be accorded great weight deference, due weight deference or de novo review, depending on the circumstances. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57, 61 (1996). We accord great weight deference when all four of the following requirements are met: the agency was charged by the legislature with the duty of administering the statute; the interpretation of the agency is one of long standing; the agency employed its expertise or specialized knowledge in forming the interpretation; and the agency's interpretation will provide uniformity and consistency in the application of the statute. Id. Under the great weight standard, we will uphold an agency's reasonable interpretation that is not contrary to the clear meaning of the statute, even if we determine that an alternative interpretation is more reasonable. Id. at 287, 548 N.W.2d at 62.

¶ 8. Here, all four requirements for great weight deference have been met. LIRC is interpreting the statutory scheme of ch. 102 of the Wisconsin Statutes, as the legislature charged it to do. LIRC has administered the worker's compensation statutes for more than eighty years and, as a consequence, it has developed considerable expertise. LIRC's interpretation also provides uniformity and consistency in the application of the law. Town of Russell Volunteer Fire Dep't v. LIRC, 223 Wis. 2d 723, 733-34, 589 N.W.2d 445, 451 (Ct. App. 1998). Accordingly, we will sustain LIRC's interpretation of the statute if it is reasonable, even though another interpretation may be more reasonable. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98, 102 (1995). "An unreasonable interpretation of a statute is one that directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without [a] rational basis." Heritage Mut. Ins. Co. v. Larsen, 2001 WI 30, ¶ 27, 242 Wis. 2d 47, 68, 624 N.W.2d. 129, 136.

Worker's Compensation Overview.

¶ 9. The Worker's Compensation Act was enacted to afford prompt relief to injured employees who are entitled to compensation, and it is the intent of the legislature that it be liberally construed to include all tasks that an employee performs that can reasonably be said to come within the scope of the employment. Nigbor v. DILHR, 120 Wis. 2d 375, 382, 355 N.W.2d 532, 536 (1984); Fels v. Industrial Comm'n, 269 Wis. 294, 297, 69 N.W.2d 225, 226 (1955). While more worker injuries are compensable under a worker's compensation claim than would be under a tort-based fault system, the amount of compensation an employer must pay is limited. Heritage Mut., 2001 WI 30 at ¶ 5. However, a worker must meet certain conditions to be eligible for benefits under the Worker's Compensation Act. Wisconsin Stat. § 102.03 provides, in relevant part:

(1) Liability under this chapter shall exist against an employer only where the following conditions concur:
(c) 1. Where at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.
4. The premises of the employer include the premises of any other person on whose premises the employee performs service.
(f) Every employee whose employment requires the employee to travel shall be deemed to be performing service growing out of and incidental to the employee's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation.

¶ 10. As used in Wis. Stat. § 102.03(l)(c), the phrase "performing service growing out of and incidental to his or her employment" refers to the "time, place and circumstances under which the injury occurred."

Weiss v. City of Milwaukee, 208 Wis. 2d 95, 104-105, 559 N.W.2d 588, 592 (1997) (citation omitted). It "includes activity that is reasonably required by the terms and conditions" of the employment. Employers Mut. Liab. Ins. Co. v. DILHR, 52 Wis. 2d 515, 521, 190 N.W.2d 907, 911 (1971). Generally, service is incidental to employment when "its performance inured to the benefit of the employer." Kimberly-Clark Co. v. Industrial Comm'n, 187 Wis. 53, 55, 203 N.W. 737, 738 (1925) (awarding benefits to worker injured while making himself a tool box to hold personally-owned tools he used during the course of his employment). For instance, "[t]he testing and repairing of machinery used in promoting the business of an employer is a service that is within the scope of the employment...." Fels, 269 Wis. at 298, 69 N.W.2d at 226 (citation omitted). And it has been held that:

one's employment by implication authorizes him to do, in addition to the things for which he is specifically employed, such further work in advancement of his employer's interests as is reasonably necessary at the time and place and which he has not been forbidden to do.

Anderson v. Industrial Comm'n, 250 Wis. 330, 334, 27 N.W.2d 499, 502 (1947).

Private errand.

¶ 11. Begel asserts that moving the joist was a service growing out of and incidental to his employment under the private errand doctrine. Under this doctrine, if a person in authority over the employee asks the employee to perform a service for the personal benefit of the employer or the employee's superior and the employee is injured during the performance of the task, his injury is one that grew out of and was incidental to his employment unless the request is "clearly unauthorized." Continental Cas. Co. v. Industrial Comm'n, 28 Wis. 2d 89, 96, 135 N.W.2d 803, 806 (1965); 2 Larson's Workers' Compensation Law § 27.04 (2000). Larson's explains the policy underlying the doctrine:

When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.
The technical reason for these holdings is that, whatever the normal course of employment may be, the employer and his supervisory staff have it within their -power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employee relation on which compen-sability depends, then what is the source of authority by which the task is assigned?
The practical reason for the rule is that any other view places the employee in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired.

2 Larson's § 27.04.

¶ 12. The Wisconsin Supreme Court applied the private errand doctrine in Continental Casualty to analyze the worker's compensation claim of Hilty, a foreman at a feed mill. Hilty and Barr, his supervisor, had gone to the mill's kennel to shoot two dogs belonging to the mill. When this was accomplished, Barr put the pistol in his overcoat pocket and asked Hilty to help him carry another dog that belonged to Barr's friend up to the second story of the mill. After they set the dog down, Barr asked Hilty to remove the pistol from his coat pocket. As Hilty removed the pistol, it fired, killing him. The supreme court concluded that Hilty died while performing services growing out of and incidental to his employment and that the accident arose out of the employment because:

[T]he services in Barr's personal interest were rendered as an incident of the trip to and from the kennel; they were not only rendered at the direction of the superior, but were performed on the premises where Hilty's duties were ordinarily performed, and during his ordinary working horns.

Continental Cas., 28 Wis. 2d at 96, 135 N.W.2d at 806. The court's use of the private errand doctrine in Continental Casualty also applied a reasonableness component to Larson's general statement when it instructed:

Perhaps there may be circumstances under which directions given by a superior would be so clearly unauthorized that services rendered in response thereto could not be said to grow out of or be incidental to the employment.

Id.

¶ 13. No Wisconsin appellate decision since Continental Casualty has addressed what sort of directions from a superior would be clearly unauthorized. However, decisions from other jurisdictions suggest that very few would be. They have required only a "quite tenuous" connection between the task that resulted in injury and the work the employee was hired to do. This is reasonable because underlying the private errand doctrine is recognition of workplace realities. For example, a supervisor's request that the employee perform a private errand that benefits him rather than the employer places the employee in a difficult position. An employee is expected to follow the directions of his supervisor, but in so doing he could risk losing worker's compensation protection. However, such a result would be directly contrary to the policies that drive the worker's compensation laws. Furthermore, the inequality in power between supervisor and employee makes it difficult for the employee to decline supervisor requests, however they are phrased. As the North Carolina Court of Appeals reasoned:

The order or request need not be couched in the imperative. It is sufficient for compensation purposes that the suggestion, request or even the employee's mere perception of what is expected of him under his job classification, serves to motivate undertaking an injury producing activity.

Stewart v. North Carolina Dep't of Corrections, 225 S.E.2d 336, 338 (N.C. Ct. App. 1976); see also Eckis v. Sea World Corp., 134 Cal. Rptr. 183, 187 (Cal. Ct. App. 1976). With the parameters of the private errand doctrine before us, we examine whether it applies to Begel's moving the joist.

¶ 14. At the hearing before the ALJ, Begel testified that he routinely traveled to and from Bohnhoff s construction site to talk with him about his research assignment, just as he did the day he was injured. This testimony is undisputed. Furthermore, because Begel traveled due to the requirements of his employment, deviation for a purpose personal to Begel did not prevent acts subsequent to the deviation from coming within the scope of his employment. Heritage Mut., 2001 WI 30 at ¶ 15.

¶ 15. Once Bohnhoff and Begel had finished discussing the research project, Begel began helping Bohnhoff install flooring over the joists of the first floor of the house. Then, according to Begel:

[I]t started to rain. The first floor was exposed. There was no roof so we started to take stuff down to put underneath the floor where it wouldn't get wet. Things like tools. And [Bohnhoff] asked me to help him move some broken joists so he picked up one end. I picked up the other and dragged it sideways. That's when I stepped into the hole.

Bohnhoff did not testify about the circumstances of the accident at the hearing. However, his statement to an insurance investigator was admitted into evidence, where he told the insurance investigator, "I was pretty direct. I said . . . let's move this . . . board over to the edge of this plastic. That sort of thing."

¶ 16. There was no testimony directly contrary to the statements of Begel and Bohnhoff, or any testimony that could support a contrary inference. Nonetheless, when analyzing whether the private errand doctrine applied, LIRC wrote:

When [Begets] injury occurred, his labor was not incidental to the performance of any work for the employer, it was performed on the premises of a personal residence not owned by the employer, and it was performed as a volunteer activity on [Begel's] personal time. Furthermore, there was no evidence to the effect that Professor Bohnhoff asked or ordered [Begel] to perform the labor. In fact, Professor Bohnhoff s written description of events verified that it was [Begel] who asked what he could do to help. Finally, the commission infers that even were Professor Bohnhoff s acceptance of [Begets] volunteered labor to be construed as a request for such labor, it would have to be found to be clearly unauthorized personal utilization of such labor, unrelated to [Begets] duties as a research assistant or student.

¶ 17. We conclude that LIRC erred both in making a finding of fact without substantial and credible evidence in the record to support it and in arriving at legal conclusions that were unreasonable. First, no substantial and credible evidence supports LIRC's finding that Bohnhoff did not ask Begel to do the task that led directly to his injury. As we pointed out above, only Begel and Bohnhoff provided evidence of how Begel became engaged in the task of moving the joist. LIRC seemed to believe that because Begel offered to help screw panels of flooring in place, all tasks after that time were outside the scope of his employment. However, as the supreme court instructed in Heritage Mut. where a traveling employee had gone to a tavern to drink (a deviation from his job) but suffered a com-pensable injury while opening a door to his trailer (an act reasonably necessary for living) after returning from the tavern, the focus for a worker's compensation claim is on the specific task the employee was performing when the injury occurred. Heritage Mut., 2001 WI 30 at ¶ 15. The focus is not on acts unrelated to the employment that may have occurred earlier. Here, the task that Begel was performing when he was injured was moving the joist, which he did in response to Bohnhoff s request.

¶ 18. Second, it is undisputed that Begel's employment required him to travel to the construction site; therefore, that site was the premises of the employer. Wis. Stat. § 102.03(l)(c)4. LIRC's conclusion that the injury occurred in a location that was not the premises of the University is unreasonable because it contradicts the plain wording of § 102.03(l)(c)4., which unambiguously states that "[t]he premises of the employer include the premises of any other person on whose premises the employee performs service." Therefore, that the injury occurred on the premises of the employer is a factor favoring the conclusion that the injury arose out of and was incidental to Begel's employment.

¶ 19. Third, Begel had come to the construction site because his work required him to do so. He had flexible hours, just as many employees do, and, as with the employee in Continental Casualty, the service rendered benefited his supervisor. Given the relationship between Begel and Bohnhoff, it would have been difficult for Begel to refuse so simple a request. Fourth, Bohnhoff s request that Begel help him move the joist was not so clearly unauthorized that Begel's response could not be said to grow out of or be incidental to the employment. Bohnhoff s request that Begel help him move the joist was no more out of the ordinary than the supervisor's request that the employee take a gun out of his pocket as occurred in Continental Casualty. Nothing about the request required Begel to do an illegal act or a task that was exceptionally dangerous to himself or to others. Therefore, we conclude that, under the private errand doctrine, Begel was performing services growing out of and incidental to his employment at the time of his injury. Accordingly, his injury is com-pensable under the Worker's Compensation Act.

CONCLUSION

¶ 20. Because we conclude that no substantial and credible evidence in the record supports LIRC's finding that Begel's supervisor did not ask him to perform the task that resulted in his injury and that LIR C's statutory interpretation of what constitutes the premises of the employer and its interpretation of the private errand doctrine are unreasonable, we affirm the decision of the circuit court reversing LIRC's denial of worker's compensation benefits.

By the Court. — Order affirmed.

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

       Other conditions of liability have not been challenged on appeal.

       Some writers have referred to this doctrine as the special errand doctrine. Fremont Indemnity Co. v. Workers' Comp. Appeals Board, 137 Cal. Rptr. 847 (Cal. Ct. App. 1977).

        Nugent Sand Co. v. Hargesheimer, 71 S.W.2d 647 (Ky. 1934) (employee of sand and gravel company sent by company president to do work on the furnace in the president's home is covered for resulting injury); Ferragino v. McCue's Dairy, 26 A.2d 730 (N.J. Sup. 1942) (dairy employee instructed to help move a piano in a church that was a customer of the dairy is covered when injured); Zapos v. Demas, 161 A. 753 (Pa. Super. Ct. 1932) (waiter injured when he was sent to deliver groceries to the employer's home is covered).

        Nichols v. Davidson Hotel Co., 333 S.W.2d 536, 546 (Mo. Ct. App. 1960) (holding that a bellhop's driving several girls who were friends of the hotel owner's wife to a party suffered an injury compensable under worker's compensation when he was killed in an automobile accident on his return trip).

       Because we affirm the circuit court based on the private errand doctrine, we do not address the question of compensation under the other theories for recovery raised by Begel.


author: BROWN, P.J.

text:
    Peter Kiss, Plaintiff-Appellant, v. General Motors Corporation, Defendant-Respondent, Bob Fish Pontiac-Cadillac-GMC Truck, Inc., Defendant.
    Court of Appeals

      No. 00-0626.

      Oral argument March 1, 2001.

    Decided May 9, 2001.

    2001 WI App 122
    (Also reported in 630 N.W.2d 742.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William S. Pocan, Vincent P. Megna and Susan M. Grzeskowiak of Jastroch & Labarge, S.C. of Waukesha. There was oral argument by Vincent P. Megna.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Kim M. Schmid, C. Paul Carver and Kevin P. Curry of Bowman and Brooke LLP of Minneapolis, Minnesota. There was oral argument by C. Paul Carver.

    Before Brown, P. J., Anderson and Snyder, JJ.
   BROWN, P.J.

¶ 1. This case presents two issues of first impression under Wis. Stat. § 218.015 (1997 — 98), Wisconsin's "Lemon Law." The first is whether a manufacturer fulfills its obligation to provide a "comparable new motor vehicle" under § 218.015(2)(b) by offering to replace a consumer's nonconforming tow truck with a new cab and chassis but without a new tow unit. Based on prior case law interpreting the language and public policy of the Lemon Law, we conclude that the statute requires the replacement of a nonconforming tow truck with a new tow unit along with the new cab and chassis.

¶ 2. The second issue is whether a consumer may pursue an action for damages under Wis. Stat. § 218.015(7) after the consumer has accepted an informal dispute settlement decision pursuant to § 218.015(3) or, alternatively, whether the consumer's remedy to enforce the decision is limited to Wis. Stat. ch. 788 governing enforcement of arbitration awards. We conclude that once a consumer resorts to a certified informal dispute settlement procedure, the consumer is not limited to enforcement under ch. 788, but may file a cause of action for damages under § 218.015(7).

¶ 3. On January 20, 1997, Peter Kiss purchased a new 1997 GMC Sierra 3500 HD Tow Truck from Bob Fish Pontiac-Cadillac-GMC Truck, Inc., an authorized dealer for General Motors Corporation (GM). At the time of purchase and acceptance, the Vulcan 882 towing package had been fully installed by the dealer. The dealer purchased the towing package from Vulcan; GM did not manufacture or warrant the towing accessories.

¶ 4. Shortly after Kiss took delivery of the tow truck, he experienced substantial problems with the performance of the vehicle. Kiss did not experience any problems with the Vulcan 882 towing package.

¶ 5. In October 1997, Kiss filed a pro se Lemon Law claim with BBB Autoline, GM's certified informal dispute settlement procedure. On December 15, 1997, the dispute settlement tribunal issued a decision in favor of Kiss, requiring GM to replace the vehicle within thirty days of Kiss's acceptance of its decision. On January 26,1998, Kiss accepted the dispute settlement decision by completing the BBB Autoline form entitled Acceptance or Rejection of Decision. GM received notification of Kiss's acceptance by February 13,1998, and was thus obligated to provide a comparable new motor vehicle by mid-March 1998.

¶ 6. During February and March, it became clear that the dealership did not have a new Sierra truck that suited Kiss's preferences. GM offered to manufacture a new truck to meet Kiss's specifications, which would take six to eight weeks, and offered to transfer the old tow unit to the new truck. GM also notified BBB Autoline that it would be unable to satisfy the time frame specified in the settlement decision.

¶ 7. Kiss rejected GM's offer to transfer the old tow unit to a new cab and chassis. Kiss's position was that the settlement decision required GM to replace the towing package along with the cab and chassis. GM's position was that the decision required GM to replace only the cab and chassis. Negotiations continued through the summer, and at one point, GM offered to repurchase the tow truck for the full sale price, including the Vulcan towing package. Kiss refused this offer.

¶ 8. On October 13,1998, Kiss, through his counsel, sent a demand letter to GM offering to transfer title of the "lemon" vehicle in return for a comparable new motor vehicle. Still unable to reach an agreement, Kiss brought this action against GM, alleging that GM failed to timely offer a comparable new motor vehicle and seeking double damages. On May 6,1999, GM filed a motion for summary judgment, claiming that it had fully complied with the Lemon Law by making a replacement vehicle available to Kiss. On December 15, 1999, the trial court ruled in GM's favor and dismissed Kiss's claims. Kiss now brings this appeal.

¶ 9. We review summary judgment decisions de novo, applying the same methodology as the trial court. Tower Ins. Co. v. Carpenter, 205 Wis. 2d 365, 369, 556 N.W.2d 384 (Ct. App. 1996). That methodology is well established and we need not repeat it here except to note that summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995).

Comparable New Motor Vehicle

¶ 10. The language "comparable new motor vehicle" is contained in Wis. Stat. § 218.015(2)(b), which provides:

(b) 1. If after a reasonable attempt to repair the nonconformity is not repaired, the manufacturer shall carry out the requirement under subd. 2. or 3., whichever is appropriate.
2. At the direction of a consumer described under sub. (l)(b)l., 2. or 3., do one of the following:
a Accept return of the motor vehicle and replace the motor vehicle with a comparable new motor vehicle and refund any collateral costs. (Emphasis added.)

Kiss contends that GM has never fully complied with its obligation under the Lemon Law because it has offered only a new cab and chassis along with the transfer of the old tow package from the "lemon." According to Kiss, this is not a comparable new motor vehicle under the statute because the statute does not contemplate transferring used parts and accessories from the "lemon" vehicle to the replacement vehicle. GM counters that the Lemon Law does not require a manufacturer to replace a tow unit that the manufacturer did not manufacture, sell or warrant.

¶ 11. We first observe that the plain language of the statute does not define the word "comparable." We have previously interpreted "comparable" to mean "a similar model vehicle with similar features, such as the type of engine, transmission, brakes, seat upholstery and accessories." Dussault v. Chrysler Corp., 229 Wis. 2d 296, 303, 600 N.W.2d 6 (Ct. App. 1999). We concluded in Dussault that the manufacturer satisfied its obligation to provide a comparable new motor vehicle under the Lemon Law by replacing a nonconforming demonstrator with a late-model demonstrator with comparable features. Id. at 306. The comparable features in that case included a six-cylinder engine, automatic transmission, leather seats and similar retail price. Id. at 305. Replacement of a demonstrator with another demonstrator, rather than a brand new vehicle, put the plaintiff in the position she thought she was in at the time of purchase. Id. at 305-06.

¶ 12. Applying Dussault to these facts would require GM to replace the tow package since the towing unit was an integral feature of the vehicle at the time of purchase. GM argues, however, that Dussault's definition of "comparable" applies only to features supplied by the manufacturer and standard factory parts, and not to third-party modifications that GM has not manufactured, sold, distributed or warranted.

¶ 13. In support of its position, GM relies primarily on Malone v. Nissan Motor Corp., 190 Wis. 2d 436, 526 N.W.2d 841 (Ct. App. 1994). In Malone, a car buyer purchased a new Nissan and at the same time ordered a spoiler installed on the vehicle. Id. at 439-40. The spoiler was not manufactured by Nissan and was not covered by Nissan's warranty. Id. at 440. The spoiler was defective and the car buyer sued Nissan under the Lemon Law. Id. This court held that the Lemon Law was not intended "to make automobile manufacturers 'super warrantors' of all automobile parts and products, particularly those which the automobile manufacturer does not manufacture, sell or supply." Id. at 442. We were especially concerned in that case with making manufacturers liable for defects in accessories made by third parties because this would relieve third-party manufacturers from liability. "[T]hey could manufacture and distribute poor quality products knowing that the car manufacturer would be liable if the accessory was defective." Id.

¶ 14. GM also relies on Bushendorf v. Freightliner Corp., 13 F.3d 1024 (7th Cir. 1993), which we discussed in Malone. In Bushendorf, the engine of a large truck failed to meet the plaintiffs expectations. Bushendorf, 13 F.3d at 1025. The plaintiff commenced a Lemon Law suit targeting the manufacturer of the truck. Id. at 1026. The Seventh Circuit held that since the truck manufacturer did not manufacture or warrant the engine, a Lemon Law claim against it was invalid. Id. at 1026-27.

¶ 15. GM contends that these cases stand for the proposition that a manufacturer cannot be held responsible under the Lemon Law for parts it did not manufacture or warrant. This reading of the case law is too broad and fails to consider the underlying policy concerns addressed by those courts. The primary concern in Malone was that third-party manufacturers of accessories bear the cost of defective products. This case, however, does not involve a defective accessory. No complaint has ever been made with respect to the Vulcan towing equipment. Therefore, making GM replace this nondefective accessory in order to provide Kiss with a comparable new vehicle does not relieve Vulcan of any responsibility with respect to Vulcan equipment. Liability for defects that may arise in the towing emit, a dealer-added accessory, resides with Vulcan as the manufacturer and warrantor of the product. Indeed, if Kiss had alleged defects in the towing package, he clearly would not have had a claim against GM under the Lemon Law. But that is not the case here. Kiss's underlying Lemon Law claim is based upon the vehicle itself which is entirely under GM's warranty. We agree with Kiss, therefore, that Malone and Bushendorf do not govern this case.

¶ 16. To hold otherwise would impute greatly disparate remedies into the Lemon Law which the legislature could not have intended. Wisconsin Stat. § 218.015(2)(b)2 provides that if the nonconformity is not repaired, the manufacturer must accept the return of the vehicle and, at the consumer's request, either replace the vehicle or refund the consumer's money paid at the point of sale. Had Kiss elected refund of the purchase price at point of sale, he would have received an amount in excess of $43,000.00. This figure reflects the value of the cab and chassis and the Vulcan towing equipment. Indeed, during negotiations GM offered to repurchase the "lemon" for $44,751.72. Kiss steadfastly requested replacement instead of a refund. It is illogical to argue that under the replacement provision of the Lemon Law, Kiss is entitled only to the cab and chassis (a value of about $24,000) while under the refund provision, he is entitled to the full value paid at the point of sale. This anomalous result would render the replacement option a nullity for consumers who purchase dealer-added accessories not manufactured or warranted by the manufacturer.

¶ 17. Furthermore, transferring the current tow package does not place Kiss in the same position he thought he was in at the point of sale. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 986, 542 N.W.2d 148 (1996). At that time, Kiss thought he was getting a brand new tow truck with full warranties. If the tow unit is transferred to a new cab and chassis, he gets an old tow package with an expiring warranty. It also opens the door to all sorts of troublesome possibilities, such as compromising the integrity of the tow unit or the replacement vehicle. Simply put, transferring nondefective automobile accessories into replacement vehicles is not contemplated within the Lemon Law statute or consistent with its public policy of returning "unfortunate consumers back to where they thought they were when they first purchased that new automobile." Id.

BBB Autoline Decision

¶ 18. BBB Autoline is GM's certified informal dispute settlement procedure that a consumer is required to submit to before he or she can pursue a Lemon Law claim against GM. See Wis. Stat. § 218.015(3). The dispute settlement tribunal issued a decision in this matter on December 15, 1997. GM agrees that the tribunal ruled in favor of Kiss, but GM further asserts that the decision unambiguously requires it only to replace the cab and chassis. First, GM argues, the dispute settlement award is governed by applicable law, including Malone and Bushendorf, which limits the authority of the tribunal to require replacement of the tow package. Second, the plain language of the dispute settlement decision awarded replacement of the cab and chassis but not the tow unit. We reject GM's first argument in light of the previous discussion holding that Malone and Bushendorf do not control this case. We now consider GM's second argument.

¶ 19. Looking at the plain language of the decision, we agree with Kiss that it unambiguously requires GM to provide Kiss with a new tow unit as well as the new cab and chassis. The dispute settlement decision expressly states:

[GM] shall replace the 1997 GMC Sierra ("vehicle") owned/leased by [Kiss] within 30 days after the manufacturer is notified that the customer has accepted this decision, with a new motor vehicle that is substantially identical to the replaced vehicle (not including any modifications or additions after the vehicle's purchase or lease), and of the same model year as the replaced vehicle. (Emphasis added.)

By its terms, GM is excused from replacing only those modifications or additions installed after Kiss purchased the vehicle. Further clarification is found in the Reasons for Decision:

a. Was the alleged problem caused by abuse, neglect, or unauthorized modification or alteration of the vehicle by a consumer?
No. This vehicle was sold as a tow truck: The tow package (GM authorized) was added by an authorized dealer prior to customer's purchase / acceptance of unit. (Emphasis added.)

Reading these two sections together, we can only conclude that a substantially identical replacement vehicle is one that possesses all the modifications/additions that the "lemon" possessed as of the date of purchase. Here, the informal dispute settlement tribunal explicitly recognized that the tow unit was installed by the dealer prior to purchase. Therefore, GM must replace it in order to provide Kiss with a new motor vehicle that is substantially identical to the replaced vehicle.

¶ 20. Because GM never offered to provide a new tow unit along with a new cab and chassis, either after the dispute settlement decision or after the October 1998 demand letter, we conclude that GM has failed to comply with the Lemon Law. We now consider whether Kiss can pursue a Lemon Law claim to enforce the dispute settlement award. We requested the parties to submit supplemental briefs on this issue and heard oral argument on March 1, 2001.

Enforcement of the Dispute Settlement Decision

¶ 21. GM's position is that Kiss's acceptance of the dispute settlement award bars suit under the Lemon Law. GM concedes that if Kiss had rejected the award, his recourse would have been to pursue a Lemon Law claim under Wis. Stat. § 218.015(7) for double damages and attorney's fees. However, there is no precedent governing appeal from a Lemon Law dispute settlement decision after acceptance. GM posits that Wisconsin's Arbitration Act, contained in WlS. Stat. ch. 788, should provide the only available remedy for enforcement of a Lemon Law dispute settlement award. Kiss counters that his acceptance of the dispute settlement decision does not preclude suit under the Lemon Law because that law specifically prohibits any waiver or limitation of a consumer's rights. Sec. 218.015(6). Forcing Kiss to resort to ch. 788, which does not allow an award for double damages or attorney's fees, would improperly limit his remedies. Kiss contends that this is a result that would defeat the purpose of the Lemon Law.

¶ 22. We begin our analysis with the standard of review. Determining whether enforcement of a dispute settlement decision must be pursued through WlS. Stat. ch. 788 rather than through a Lemon Law claim for damages requires that we interpret the applicable statutes. A question of statutory interpretation is a question of law that we review independently of the trial court. Morris v. Juneau County, 219 Wis. 2d 543, 550, 579 N.W.2d 690 (1998). Our goal is to discern and give effect to the intent of the legislature. Id. If a statute is unambiguous, this court will apply the ordinary and accepted meaning of the language of the statute to the facts before it. Jones v. State, 226 Wis. 2d 565, 587-88, 594 N.W.2d 738 (1999). Furthermore, conflicts between different statutes, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed. Id. at 576.

¶ 23. We hold that the statutes in question are not vague or ambiguous; neither do they overlap. The Wisconsin Arbitration Act, set forth in WlS. Stat. ch. 788, relates to the relief to which a party to arbitration is entitled. Under its provisions, a party is limited to enforcement, vacation or modification of an arbitration award. It does not provide any additional relief to a party who is aggrieved by the failure of another party to comply with an arbitration decision. Most importantly, from the consumer's perspective, ch. 788, unlike the Lemon Law, does not permit a party to recover attorney's fees and costs. It therefore would provide only limited relief to a consumer who is required to resort to a certified informal dispute settlement procedure prior to filing suit under the Wisconsin Lemon Law.

¶ 24. The Lemon Law, on the other hand, is a remedial statute that seeks to provide an incentive for a manufacturer to put the purchaser of a new vehicle back to the position the purchaser thought he or she was in at the time the vehicle was purchased. Hughes, 197 Wis. 2d at 976. The incentive consists of an award of double damages and attorney's fees when the manufacturer fails to timely comply with the statute. If the manufacturer has an informal dispute settlement mechanism, the consumer must resort to it before filing his or her Lemon Law claim. Sec. 218.015(3). In this case, Kiss resorted to the procedure as he was mandated to do.

¶ 25. We find no persuasive authority to support GM's position that enforcement of the settlement decision is limited to Wis. Stat. ch. 788. The Lemon Law does not, on its face, speak to whether a consumer is barred from pursuing a Wis. Stat. § 218.015(7) claim after he or she resorts to the dispute settlement procedure. Nor is ch. 788 referred to anywhere in the statute. Indeed, the word "arbitration," a term of legal art, does not appear in the Lemon Law statute either. The case law defines "arbitration" as "a proceeding voluntarily undertaken by parties who want a dispute determined on the merits of the case by an impartial decision maker of their choosing, which decision the parties agree to accept as final and binding." Stradinger v. City of Whitewater, 89 Wis. 2d 19, 31, 277 N.W.2d 827 (1979). By its very terms, the Lemon Law statute, which explicitly precludes the waiver of a consumer's rights and also perserves the right of a consumer to pursue any other remedy, is not providing for arbitration. Wis. Stat. § 218.015(5) and (6). Instead, the relevant Lemon Law language states: "If there is available to the consumer an informal dispute settlement procedure which is certified under sub. (4), the consumer may not bring an action under sub. (7) unless he or she first resorts to that procedure." Sec. 218.015(3). Nothing in this language implies that a consumer who accepts a decision terminates his or her Lemon Law rights. Had the legislature intended to restrict application of the Lemon Law remedies in this way, it could easily have done so. It did not.

¶ 26. The fact that the word "arbitration" appears in the BBB Autoline decision and other BBB Autoline documents is immaterial to our statutory analysis. If we gave credence to the term "arbitration" as it is used by BBB Autoline, we would be violating both the letter and the spirit of the Lemon Law as envisioned by our legislature. We suggest that BBB Autoline eliminate the word "arbitration" from its materials and rename its procedure "informal dispute settlement procedure." We further suggest the neutral third party decision-maker should be more accurately described.

¶ 27. GM cites to cases holding that agreements to arbitrate will be enforced even if the applicable statute does not explicitly authorize or prohibit arbitration. See Jones v. Poole, 217 Wis. 2d 116, 120, 579 N.W.2d 739 (Ct. App. 1998). The crucial fact in Jones, however, was that the parties had an insurance contract in which they had agreed to settle disputes through arbitration. Id. at 121. Here, there is no conventional contractual commitment to arbitrate. GM conceded as much in oral argument. Kiss resorted to the dispute settlement mechanism only because he was required to do so prior to commencing a Wis. Stat. § 218.015(7) claim.

¶ 28. Furthermore, the legislature explicitly provided that the protections of the Lemon Law cannot be waived. Wis. Stat. § 218.015(6) ("[a]ny waiver by a consumer of rights under this statute is void"). GM's position that Kiss's acceptance of the dispute settlement decision limits his recourse to Wis. Stat. ch. 788 is essentially a waiver of Lemon Law remedies. We agree with Kiss that this would contravene the non-waiver provision of the Lemon Law.

¶ 29. GM contends that "if the Lemon Law obligation to submit to arbitration is to have sufficient force to achieve the goal of encouraging settlement ], plaintiffs must be required to perform their obligations under those agreements. Otherwise, the dispute settlement requirement becomes simply a meaningless hoop that consumers must jump through on their way to double damages." (Emphasis added.) GM presumes that Kiss had an obligation under the informal dispute settlement decision. We do not agree. The form that Kiss signed to accept the decision contained the following language:

_I ACCEPT THE ARBITRATION DECISION. I understand this means the business will be legally bound to abide by this decision.

Nowhere does it state that the consumer is legally bound or that he or she has given up other Lemon Law remedies. This comports with the Department of Transportation's regulations that were promulgated in response to Wis. Stat. § 218.015(4) (requiring DOT to adopt rules for informal dispute settlement procedures). Wisconsin Admin. Code § Trans 143.06(11) states that "[djecisions of the certified mechanism shall be legally binding on the manufacturer." In addition, the decision must include a statement that it is binding upon the warrantor and not the consumer. Sec. Trans 143.06(4)(d)4.

¶ 30. Finally, this court in the past has interpreted the Lemon Law to be a "stand alone" statute which is not dependant upon or qualified by other statutes. See Herzberg v. Ford Motor Co., 2001 WI App 65, ¶ 15, 242 Wis. 2d 316, 626 N.W.2d 67. In Herzberg, Ford Motor Company conditioned its refund offer upon the Herzbergs providing information on the condition of the vehicle. This information could have been required under the U.C.C. This court refused to harmonize the Lemon Law with other statutory provisions, stating that consumers' obligations under the Lemon Law cannot be expanded. Id. at ¶ 17. The court also refused to read into the Lemon Law the good faith requirements of the common law of contracts. Id. at ¶ 18. Instead, the obligation to act in good faith is rooted in the Lemon Law itself. Id. Similarly, in Chariton v. Saturn Corp., 2000 WI App 148, ¶ 5, 238 Wis. 2d 27, 615 N.W.2d 209, the court refused to read into the Lemon Law a requirement that a consumer sign a release as a condition to receiving the refund. In light of these cases, we should not impute into the Lemon Law the limited remedies available under Wis. Stat. ch. 788. To do so would lessen the effectiveness of Wisconsin's Lemon Law by granting manufacturers' certified mechanisms more power than the law intended.

¶ 31. In conclusion, we hold that GM violated the Lemon Law by failing to provide a comparable new motor vehicle in conformance with the settlement decision. We further hold that Kiss is entitled to seek enforcement of that decision through a Lemon Law claim under Wis. Stat. § 218.015(7). Accordingly, we reverse the order of summary judgment and remand the case for further proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded.

      All references to the Wisconsin Statutes are to the 1997-98 version, which was in effect at the time this action commenced. The current version of Wisconsin's Lemon Law statute is found at WlS. STAT. § 218.0171 (1999-2000). In 1999, the statute was renumbered, but the substance of the law is unchanged. See 1999 Wis. Act 31, § 287.

       The dealership also filed a motion for summary judgment. The trial court granted the motion in its entirety. Because Kiss does not appeal that decision, the dealership is not a party to the appeal.

       Kiss also alleged violations of WlS. STAT. § 402.608 (U.C.C. revocation provision), WlS. STAT. § 402.719 (U.C.C. remedy provision), WlS. STAT. § 402.314 (U.C.C. merchantability provision), WlS. STAT § 402.315 (U.C.C. not fit for particular purpose), and the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 (2000). Kiss does not appeal the trial court’s decision with respect to these claims.

       Consider the result in Malone had the facts been different. Suppose, for example, that Malone had alleged nonconformities in warranted parts of the vehicle, rather than the dealer-added spoiler. We have no doubt in that case the manufacturer would have had to replace the spoiler in order to provide a comparable new motor vehicle to the consumer. We do not imagine the manufacturer would have transferred the nondefective spoiler from the "lemon" to the replacement vehicle.

       GM does not quite concede that the amount paid by the consumer at the point of sale under Wis. Stat. § 218.015(2)(b)2.b includes third-party modifications and equipment. Nonetheless, the evidence shows that GM offered to pay the full purchase price in an attempt to settle the matter. We are well aware that WlS. STAT. § 904.08 states that an offer to compromise is inadmissible in evidence to prove, among other things, that a party concedes liability or the amount of money due. However, § 904.08 was never at issue with the parties. Moreover, we do not use this evidence as proof that GM has conceded liability or that it was conceding the amount of money due or owing. Nor could we do so since that would be fact-finding — an exercise that this court does not engage in. Rather, we use it as part of the following observation: While we are not asked today to define the meaning of "amount paid by the consumer at the point of sale," we see no indication that it means other than what it explicitly says. That is, the amount paid by the consumer at the point of sale is anything paid for by the consumer that day, including nonmanufacturer options paid for at the time of the sale whether installed prior to sale or after, less a reasonable amount for use, and any rebates received by the consumer. See Church v. Chrysler Corp., 221 Wis. 2d 460, 470-71, 585 N.W.2d 685 (Ct. App. 1998).

        See Finkenbinder v. State Farm Mut. Auto. Ins. Co., 215 Wis. 2d 145, 151-52, 572 N.W.2d 501 (Ct. App. 1997) (finding no statutory, authority for awarding costs in an arbitration proceeding under Wis. Stat. ch. 788).

       The Wisconsin Arbitration Act contains the following provision:
      788.01 Arbitration clauses in contracts enforceable. A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable ....
      Wis. Stat. § 788.01.

       The BBB Autoline Program Summary, which summarizes consumers' rights in the dispute settlement mechanism, states, "[T]he arbitrator's decision is not binding on you. You may accept or reject the decision. If you accept the decision, the manufacturer is bound to comply with it."