author: DYKMAN, J.

text:
    Holmen Concrete Products Company and Iverson Construction Company, Plaintiffs-Respondents, v. Hardy Construction Company, Inc., Westbrook Associated Engineers, Inc., Augelli Concrete & Excavating, LLC, Neenah Foundry Company, and MT. Rock, Defendants, Village of Readstown, Defendant-Appellant.

    Court of Appeals

      No. 03-3335.

      Submitted on briefs April 9, 2004.

    Decided July 29, 2004.

    2004 WI App 165
    (Also reported in 686 N.W.2d 705.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David L. Jenkins of Jenkins and Stittleburg, Viroqua.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Mark O. Anderson and Jeffrey S. Nicolet of Wagner Falconer & Judd, Ltd., Minneapolis, Minnesota.
    Before Deininger, EJ., Dykman and Lundsten, JJ.

       Petition to review denied 12-15-2004.

   DYKMAN, J.

¶ 1. The Village of Readstown appeals from a summary judgment granted to plaintiffs, Holmen Concrete Products Company and Iverson Construction Company. The circuit court concluded that the Village was responsible for damages resulting from its failure to ensure that a prime contractor had obtained a payment and performance bond under Wis. Stat. § 779.14. The Village asserts it had no duty to assure that the contractor secured a bond because a 1997 revision of § 779.14 deleted this requirement. It also claims that this action is time barred because it was not commenced within twenty days after the Village notified Holmen and Iverson of what fraction of the outstanding amounts it planned to pay each as required by Wis. Stat. § 779.15(4)(a).

¶ 2. We conclude that a municipality is responsible for failure to ensure that a prime contractor obtains a payment bond because the 1997 statutory revision did not remove liability for breach of this duty as explained in Cowin & Co., Inc. v. City of Merrill, 202 Wis. 614, 233 N.W. 561 (1930). Further, we conclude that the twenty-day statute of limitations set forth in Wis. Stat. § 779.15(4)(a) is inapplicable to a cause of action against a municipality for failure to ensure the acquisition of a bond. Therefore, we affirm.

BACKGROUND

¶ 3. In 2001, the Village of Readstown contracted with Hardy Construction Company to be the prime contractor on a construction project known as the Wisconsin Avenue Corridor and Charles Street renovation project. The Village's contract with Hardy required the contractor to obtain a payment and performance bond. Hardy subcontracted with Holmen to provide materials, and with Iverson to provide materials and labor on the project. Holmen and Iverson performed their obligations under the agreement, but Hardy failed to pay them. Holmen and Iverson then submitted claims to the Village of $85,859.10 and $81,279.12, respectively, for unpaid materials and labor.

¶ 4. In late 2001, Village staff became aware that the Village failed to ensure that Hardy had acquired an appropriate payment and performance bond. By letter dated January 24, 2002, the Village informed Holmen and Iverson and other project subcontractors that a bond may not have been issued to Hardy. The letter also outlined the partial payments the Village determined would be paid to each subcontractor. On February 25, 2002, the Village paid Holmen $44,295 and Iverson $41,932.

¶ 5. On May 2, 2002, Holmen and Iverson each gave the Village written notice of their claims against it. On August 30, 2002, they sued Hardy and the Village to recover the unpaid portion of the contracts. They asserted claims of breach of contract against Hardy, claims to enforce their respective liens against public funds under Wis. Stat. § 779.15, and claims for damages stemming from the Village's failure to require Hardy to furnish a payment and performance bond as required by Wis. Stat. § 779.14(lm).

¶ 6. The Village filed a motion for summary judgment contending that Holmen's and Iverson's claims against the Village were barred by the limitations period set forth in Wis. Stat. § 779.15(4)(a), which the Village asserted was triggered by its January 24, 2002 letter. Holmen and Iverson also filed a motion for summary judgment seeking a determination holding the Village liable to the plaintiffs for failure to require or approve a performance and payment bond of Hardy as required by statute.

¶ 7. The trial court denied the Village's motion for summary judgment, and granted Holmen and Iverson's motion for summary judgment. The Village appeals.

STANDARD OF REVIEW

[13

¶ 8. We review a grant or denial of a motion for summary judgment de novo. State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶ 12, 275 Wis. 2d 35, 683 N.W.2d 75. Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

DISCUSSION

¶ 9. Our review of the circuit court's grant of summary judgment in this case turns entirely on our interpretation of the validity of Holmen's and Iverson's claims against the Village. Whether a complainant alleges a valid claim is a question of law for the court to decide. Powell v. Cooper, 2001 WI 10, ¶ 10, 241 Wis. 2d 153, 622 N.W.2d 265. The validity of Holmen's and Iverson's claims rests on our interpretation of certain provisions of the lien statutes for public contracts. Statutory interpretation is a question of law that we review de novo. Donaldson v. Board of Commissioners of Rock-Koshkonong Lake District, 2004 WI 67, ¶ 15, 272 Wis. 2d 146, 680 N.W.2d 762.

¶ 10. Our interpretative task here involves two issues. The first is whether, under Wis. Stat. § 779.14, a municipality is liable to unpaid subcontractors if the municipality fails to ensure that a prime contractor secures a payment and performance bond. The second is, assuming liability exists under § 779.14, whether resulting claims are subject to the time bar set forth in Wis. Stat. § 779.15(4)(a). We address each issue in turn.

¶ 11. The Wisconsin Supreme Court held in Cowin that a municipality is liable to a subcontractor if the municipality fails to require a prime contractor to furnish the municipality with a bond. 202 Wis. at 617. In Cowin, a firm that had contracted for road construction with the City of Merrill became insolvent and failed to pay its subcontractors. Id. at 614. The City had neglected to obtain from the prime contractor a bond to ensure the payment of labor and materials to subcontractors, as required by former Wis. Stat. § 289.16 (1927). Id. at 614-15. Section 289.16 provided:

(1) All contracts involving one hundred dollars or more ... when the same pertains to or is for ... any ... public improvement, public road ... of whatsoever kind of the state, or of any county, city . . . shall contain a provision for the payment by the contractor of all claims for such work and labor performed and materials furnished, and no such contract shall hereafter be made or let unless the contractor shall give a good and sufficient bond, the penalty of which shall not be less than the contract price, conditioned for the faithful performance of the contract, and the payment to each and every person or party entitled thereto of all the claims for work or labor performed, and materials furnished....

Section 289.16(1) (1927). In 1979, the statute was renumbered Wis. Stat. § 779.14(lm), and, as amended, read in pertinent parts:

(a) All contracts with the state involving $2,500 or more and all other contracts involving $500 or more for the performance of labor or furnishing materials when the same pertains to any public improvement or public work shall contain a provision for the payment by the prime contractor of all claims ....
(b)l. A contract under par. (a) shall not be made unless the prime contractor gives a bond ....

Section 779.14(lm) (1995-96). A 1998 revision of § 779.14 deleted section (lm)(b)l. 1997 Wis. Act 237.

¶ 12. The Village contends the deletion of this provision by 1997 Wisconsin Act 237 relieved municipalities of the duty to ensure that contractors obtain a bond, "chang[ing] the rule of Cowin and placing] the risk upon the prime contractor and the subcontractors." The Village asserts that the revised statute mandates only that a municipality ensure that the "contract... require the prime contractor to obtain a payment and performance bond." Wis. Stat. § 779.14(lm)(d)3. In the Village's view, the statutory change overruled Cowin and limited a municipality's duty, with regard to prime contractor bonds, to ensuring that contract language includes a bond requirement.

¶ 13. "The purpose of statutory interpretation is to determine what [a] statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, 44, 271 Wis. 2d 633, 681 N.W.2d 110. If a statute's meaning is plain, we look no further and simply apply the statute. Id. at 45. In this case, the deletion of the subparagraph containing the phrase "may not be made unless the prime contractor gives a bond" from the statutory scheme requires us to look further to ascertain the statute's meaning.

¶ 14. The 1998 changes to Wis. Stat. § 779.14 altered bond requirements for some public contracts. A Legislative Reference Bureau (LRB) analysis of the proposal outlined these changes in detail, including the creation of different payment and performance requirements for local government contracts based on the size of the contract. Legislative Reference Bureau Drafting File for 1997 A.B. 768. The analysis noted that all contracts over $100,000 must include a bond. Id. The comprehensive LRB summary did not address why § 779.14(lm)(b)l was removed. Id. In fact, nothing in the legislative history suggests that the deletion's purpose was to remove the duty of a municipality to require a proper bond. Id.

¶ 15. We move next to an examination of the statutory scheme as a whole. "The context of a statute may be relevant to its meaning; therefore, statutes should be interpreted not in isolation but as a part of a whole." Kalal, 271 Wis. 2d 633 at 46. Here, the 1998 revision preserved a critical provision that any bond "shall be approved" by an appropriate government official identified by the statute, in this case "a village by its president." Wis. Stat. § 779.14(lm)(e)3. For this provision to have meaning, a municipality's duty in this context must extend beyond merely the drawing up of proper contract language. "[Statutes should be construed to give effect to each and every word, clause and sentence and a construction that would result in any portion of a statute being superfluous should be avoided wherever possible." Wagner v. Milwaukee County Election Commission, 2003 WI 103 33, 263 Wis. 2d 709, 666 N.W.2d 816. Plainly, a local government official cannot approve a non-existent bond. In addition, failure to impose liability where no bond is provided would render the approval requirement ineffectual. See Boehck Construction Equipment Corp. v. Voigt, 17 Wis. 2d 62, 76, 115 N.W.2d 627 (1962).

¶ 16. Furthermore, when interpreting a revised statute, we must construe it "in the same sense as the original unless the change in language indicates a different meaning so clearly as to preclude judicial construction." Wis. Stat. § 990.001(7); See Danielson v. City of Sun Prairie, 2000 WI App 227 ¶ 11, 239 Wis. 2d 178, 619 N.W.2d 108. -"'Revisions of statutes do not change their meaning unless the intent to change the meaning necessarily and irresistibly follows from the changed language.'" Pigeon v. DILHR, 109 Wis. 2d 519, 526 n.3, 326 N.W.2d 752 (1982) (quoting Guse v. A.O. Smith Corp., 260 Wis. 403, 406, 51 N.W.2d 24 (1952)).

¶ 17. The Village argues that another provision of the statute shows that the Legislature no longer finds the ensuring of a proper bond mandatory. It notes that for contracts between $50,000 and $100,000, a substitute payment or performance assurance may be permitted "only after the contract has been awarded." Wis. Stat. § 779.14(lm)(d)2.b. By this, the Village apparently contends that if in some cases a payment and performance assurance is not permitted until after contract approval, surely the Legislature intended to relax the obligation of municipalities to ensure that contractors obtain payment or performance assurances for other contracts.

¶ 18. This argument asks us to overturn Cowin based on inferences drawn from a provision of the statute that is inoperative here. Long-standing precedent may not be overturned " 'unless the legislative purpose to do so is clearly expressed.'" Hoffman v. Wisconsin Electric Power Company, 2003 WI 64 ¶ 13, 262 Wis. 2d 264, 664 N.W.2d 55 (quoting Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81 ¶ 25, 244 Wis. 2d 758, 628 N.W.2d 833). When a legislative act has been construed by an appellate court, the legislature is presumed to know that without an explicit change in the law, the court's interpretation will remain unchanged. See Blazekovic v. City of Milwaukee, 225 Wis. 2d 837, 845, 593 N.W.2d 809 (Ct. App. 1999).

¶ 19. The policies supporting the Cowin rule remain pertinent today. Municipal liability for failure to ensure that a contractor furnishes a proper bond protects subcontractors, taxpayers and the municipality itself. Cowin, 202 Wis. at 616. "The purpose of [the former Wis. Stat. § 289.16] is to protect subcontractors and others" should a prime contractor be unable to pay. Id. at 617-18. A liability rule also "insures a fairer prospect of better bids because it encourages the competition of all interested by the assurance of payment." Id. at 616.

¶ 20. For these reasons, we follow Cowin and conclude that the Village is liable to Holmen and Iverson for damages incurred as a result of the Village's failure to require Hardy Construction to obtain a bond. We now turn to the issue of whether Holmen's and Iverson's claims are time barred.

¶ 21. The Village contends the claims of Holmen and Iverson are subject to the twenty-day time bar set forth in Wis. Stat. § 779.15(4)(a). This section provides:

When the total of the lien claims exceeds the sum due the prime contractor and where the prime contractor has not disputed the amounts of the claims filed, the debtor ... municipality, through the officer, board, department or commission with whom the claims are filed, shall determine who is entitled to the money and shall notify all claimants and the prime contractor in writing of the determination. Unless an action is commenced by a claimant or by the prime contractor within 20 days after the mailing of the notice, the money shall he paid out in accordance with the determination and the liability of the .. . municipality to any lien claimant shall cease.

¶ 22. The Village notes that Holmen and Iverson filed lien claims against the Village. The Village then mailed a letter dated January 24, 2002, to Holmen, Iverson and the other subcontractors informing them that their lien claims exceeded the sum remaining due the prime contractor. The Village asserts that this letter provided Holmen and Iverson with appropriate notice required by Wis. Stat. § 779.15(4)(a). It further argues that the twenty-day statute of limitations for actions against the municipality under § 779.15(4)(a) began to toll with the mailing of the letter. On February 25,2002, the Village issued checks in the proposed amounts to Holmen and Iverson. It is undisputed that Holmen and Iverson did not provide notice of their claims against the Village until May 22, 2002, nearly four months after the January 24 letter was mailed.

¶ 23. We conclude the Village's statute of limitations defense is inapposite to the present cause of action. A claim against a municipality for failure to ensure that a contractor obtains a payment and performance bond is distinct from a construction lien claim brought under Wis. Stat. § 779.15(4)(a). In contrast, § 779.15(4)(a) applies to lien claims that can be asserted against funds held by a public owner on a public project. The lien claims statute does not apply to claims arising from the breach of a municipality's duty to require a payment and performance bond. In their complaint, Holmen and Iverson appropriately stated these two distinct claims as separate causes of action.

¶ 24. Wisconsin Stat. § 893.80, not Wis. Stat. § 779.15(4)(a), outlines the time and filing requirements applicable to Holmen's and Iverson's claims against the Village. The statute provides that any plaintiff bringing an action against a governmental body, official(s), agent(s) or employee(s) must provide written notice of the claim within 120 days after the happening of the event giving rise to the claim, unless the governmental party had actual notice of the claim and was not prejudiced by any delay in notification. Section 893.80(l)(a). The governmental party then may respond with a notice of disallowance of the claim. Id. Failure to respond within 120 days is also considered disallowance. Id. The plaintiff then has six months from the notice of disallowance in which to sue the governmental party. Id. Holmen and Iverson have met the requirements of this statute. On January 24, 2002, the Village issued the letter informing Holmen and Iverson that Hardy did not have a bond. Ninety-eight days later, on May 2, 2002, Holmen and Iverson gave the Village their notices of claim. The Village Board voted to disallow the claims at its July 13, 2002 meeting. On August 30, 2002, Holmen and Iverson sued the Village and Hardy, well within six months of the notice of disallowance. Holmen's and Iverson's claims for breach of duty against the Village were timely filed under § 893.80.

¶ 25. In sum, we hold that Cowin continues to impose a duty upon municipalities to ensure that a prime contractor obtains an appropriate payment and performance bond. We further hold that a claim for failure to approve a payment and performance bond is subject to the procedural requirements of Wis. Stat. § 893.80. Therefore, we affirm the trial court's order.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wisconsin Stat. § 779.14(lm)2(d) provides:

        Local government contracts. The following requirements apply to contracts, other than contracts with the state, for the performance of labor or furnishing materials for a public improvement or public work.
      Wisconsin Stat. § 779.14(lm)2(d)3 provides in part:
      In the case of a contract with a contract price exceeding $100,000... the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under par. (e).
      Wisconsin Stat. § 779.14(lm)2(e)3 provides in part:
      A bond required under par. (d) shall be approved for a county by its corporation counsel, for a city by its mayor, for a village by its president, for a town by its chairperson, for a school district by its president and for any other public board or body by the presiding officer thereof.

       Wisconsin Stat. § 779.15(4)(a) provides:
      When the total of the lien claims exceeds the sum due the prime contractor and where the prime contractor has not disputed the amounts of the claims filed, the debtor state, county, town or municipality, through the officer, board, department or commission with whom the claims are filed, shall determine who is entitled to the money and shall notify all claimants and the prime contractor in writing of the determination. Unless an action is commenced by a claimant or by the prime contractor within 20 days after the mailing of the notice, the money shall be paid out in accordance with the determination and the liability of the state, county, town or municipality to any Hen claimant shall cease.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    David Schauer, Plaintiff-Appellant, v. Diocese of Green Bay, SS. Peter and Paul School, Donald Buzanowski, Alias Insurance Company #1, and Alias Insurance Company #2, Defendants-Respondents.
    Court of Appeals

      No. 03-2962.

      Submitted on briefs May 10, 2004.

    Decided August 3, 2004.

    2004 WI App 180
    (Also reported in 687 N.W.2d 766.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey R. Anderson of Jeff Anderson & Associates, P.A., St. Paul, Minnesota, and James A. Johnson oí Johnson & Houlihan, S.C., Rhine-lander.
    On behalf of the defendants-respondents, Diocese of Green Bay and SS. Peter and Paul School, the cause was submitted on the brief of Patrick W. Brennan, Michele M. Ford and Debora A. Fronczak of Crivello, Carlson & Mentkowski, S.C., Milwaukee.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   PETERSON, J.

¶ 1. David Schauer appeals a judgment dismissing his claims against the Diocese of Green Bay and Saints Peter and Paul School as time-barred by the statute of limitations. Schauer's claims stem from alleged sexual abuse committed by a priest, Donald Buzanowski, who served in the diocese and at the school. Schauer argues his claims are not time-barred because (1) Wis. Stat. §§ 893.585 and 895.70 extend the statute of limitations where, as here, there is sexual exploitation by a therapist; (2) the diocese and the school discouraged Schauer from pursuing legal action and thus are estopped from raising the statute of limitations as a defense; (3) his claim for negligent retention and supervision did not arise until he discovered it shortly before filing this action; and (4) his claims for fiduciary fraud and breach of fiduciary duty also did not arise until he discovered them just before filing. We disagree with Schauer's first, third and fourth arguments and affirm the circuit court's judgment on those issues. However, we reverse on the second issue —estoppel. Whether the diocese and the school should be estopped from raising the statute of limitations as a defense is a matter for the trial court's discretion. Since the circuit court did not address estoppel and therefore did not exercise its discretion, we remand on this issue.

BACKGROUND

¶ 2. This appeal comes to us following a grant of a motion to dismiss the complaint. For the purpose of testing the legal sufficiency of the complaint, we take as true all facts pled and all reasonable inferences from those facts. Watts v. Watts, 137 Wis. 2d 506, 512, 405 N.W.2d 305 (1987). According to the complaint, Donald Buzanowski was ordained as a priest in 1968 and served at several parishes in the Diocese of Green Bay. He also served as a teacher and counselor at Saints Peter and Paul School in Green Bay. He has admitted to molesting fourteen boys between 1969 and 1988. At the time of the incident, Buzanowski was employed and supervised by the diocese and the school.

¶ 3. Schauer attended Saints Peter and Paul School. All students were required to have a counseling session with Buzanowski. Buzanowski then requested additional counseling with children he thought needed it. During one of these additional counseling sessions in 1988, when Schauer was ten years old, Buzanowski had sexual contact with Schauer.

¶ 4. Schauer reported the sexual contact to the Green Bay police in 1990. Ultimately, prosecutors chose not to pursue any action against Buzanowski. An official of the diocese, Father David Kiefer, agreed that the diocese would pay for therapy for Schauer. However, Kiefer warned Schauer not to discuss the allegations with anyone or Schauer and his family could be sued for defamation.

¶ 5. Schauer states he developed psychological coping mechanisms after the abuse. These included self-blame, denial, and repression of and disassociation from the experience. As a result, he asserts he did not know or have reason to know the nature of his injuries or how the diocese's and the school's actions caused his injuries until shortly before he commenced this action.

¶ 6. Schauer's complaint alleges three claims against the diocese and the school: (1) negligent retention and supervision, (2) fiduciary fraud, and (3) breach of fiduciary duty. The first claim is based on allegations that the diocese and the school knew or should have known of Buzanowski's prior sexual misconduct against minor children and failed to adequately supervise Buzanowski and protect Schauer. The second and third claims allege that the diocese and the school failed to disclose information to Schauer regarding Buzanowski's past behavior. Schauer alleges the diocese and the school intentionally withheld the information.

¶ 7. The diocese and the school moved to dismiss, arguing the action was time-barred by the statute of limitations. Wisconsin Stat. § 893.54 requires an action for civil damages be commenced within three years of the time the claim accrues. Here, the three-year limit was extended because (1) Schauer was a minor at the time of the incident and (2) Schauer joined the military when he turned eighteen. First, Wis. Stat. § 893.16 provides that a minor has two years from reaching age eighteen to file a claim. Further, the Soldier's and Sailor's Civil Relief Act requires that the time of military service does not count against a statute of limitations. 50 U.S.C. § 525. The trial court determined that Schauer turned eighteen in 1996. He joined the military that year and was discharged in 1999. The court held that he had two years from his discharge to file his claims. Since he was discharged in 1999, he had until 2001 to file. Because he did not file until 2003, the court concluded the limitations period had passed. The court granted the motion to dismiss Schauer's claims.

DISCUSSION

¶ 8. A motion to dismiss tests the legal sufficiency of the complaint. Bartley v. Thompson, 198 Wis. 2d 323, 331, 542 N.W.2d 227 (Ct. App. 1995). The motion raises a question of law that we review without deference to the trial court. Id. A complaint is legally insufficient and warrants dismissal if under no circumstances can the plaintiff recover based on the facts alleged. Williams v. Security S&L Ass'n, 120 Wis. 2d 480, 482-83, 355 N.W.2d 370 (Ct. App. 1984).

A. Wisconsin Stat. §§ 895.70 and 893.585

¶ 9. Schauer argues that Wisconsin statutes extend the statute of limitations for up to fifteen years when sexual contact occurs during therapy. Wisconsin Stat. § 895.70(2) states:

(a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact.

Section 895.70(l)(e) includes in its definition of therapist members of the clergy "who perform[] or purportQ to perform psychotherapy." Wisconsin Stat. § 455.01(6) defines psychotherapy as "the use of learning, conditioning methods and emotional reactions in a professional relationship to assist persons to modify feelings, attitudes and behaviors which are intellectually, socially or emotionally maladjustive or ineffectual."

¶ 10. The statute of limitations for an action against a therapist is set forth in Wis. Stat. § 893.585:

(1)... an action under s. 895.70 for damages shall be commenced within 3 years after the cause of action accrues or be barred.
(2) If a person entitled to bring an action under s. 895.70 is unable to bring the action due to the effects of the sexual contact or due to any threats, instructions or statements from the therapist, the period of inability is not part of the time limited for the commencement of the action, except that this subsection shall not extend the time limitation by more than 15 years.

¶ 11. In his complaint, Schauer alleges that his sessions with Buzanowski meet the definition of psychotherapy in Wis. Stat. § 455.01(6) because Buza-nowski was engaging in a professional relationship to assist Schauer to modify feelings, attitudes and behaviors. Thus, Schauer argues he had a claim under Wis. Stat. § 895.70(2).

¶ 12. Schauer contends his claims accrued when he turned eighteen, in 1996. Further, the statute was tolled for three years during Schauer's military service. See 50 U.S.C. § 525. Thus, Schauer contends that under Wis. Stat. § 893.585, the statute of limitations would not have expired for another fifteen years, until 2014. Schauer brought the action in 2003, and therefore contends he filed well within the extended limitations period.

¶ 13. Schauer's argument is contrary to L.L.N. v. Clauder, 203 Wis. 2d 570, 552 N.W.2d 879 (Ct. App. 1996). In that case, we held that Wis. Stat. § 895.70 does not extend liability to a therapist's employer. Id. at 575. Clauder was a priest serving as a hospital chaplain and resided at the parish house of a Catholic church. While L.L.N. was a patient at the hospital, Clauder counseled her. They continued to meet after L.L.N. left the hospital and eventually began a sexual relationship. Id. at 576-77. L.L.N. argued that Clauder used his position to engage her in a sexual relationship. Id. at 574. She sought recovery against the diocese alleging, among other things, that § 895.70 created a claim against the diocese for sexual contact with a priest who was a therapist. Id. at 575.

¶ 14. We held in Clauder that the diocese was not liable under Wis. Stat. § 895.70. That statute unambiguously grants a claim against a therapist, but says nothing about the employer's responsibility for the therapist's actions. Id. at 594. We declined to read into the statute language that was not there. Id. Similarly, here, Sehauer has no claim against the diocese and the school under § 895.70. Even if the statute grants Sehauer a claim against Buzanowski as a therapist, that claim does not extend to the diocese and the school. Consequently, the extended statute of limitations in Wrs. Stat. § 893.585 does not apply.

¶ 15. Sehauer argues, however, that the supreme court reversed our holding in Clauder. However, the supreme court's reversal regarded only a First Amendment issue. See L.L.N. v. Clauder, 209 Wis. 2d 674, 704, 563 N.W.2d 434 (1997). Holdings not specifically reversed on appeal retain precedential value. State v. Byrge, 225 Wis. 2d 702, 717-18 n.7, 594 N.W.2d 388 (Ct. App. 1999), aff'd, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477. Thus, our conclusions in Clauder regarding a diocese's liability for a priest's actions remain binding.

B. Equitable Estoppel

¶ 16. Sehauer argues that the diocese and the school are equitably estopped from asserting the statute of limitations as a defense. Whether to apply estoppel to preclude a party from raising a defense is within the trial court's discretion. Gonzalez v. Teskey, 160 Wis. 2d 1, 13, 465 N.W.2d 525 (Ct. App. 1990). We affirm the trial court's discretionary determinations if it applied the correct law and, through a logical process, reached a result a reasonable judge could reach. Rodak v. Rodak, 150 Wis. 2d 624, 631, 442 N.W.2d 489 (Ct. App. 1989).

¶ 17. A trial court is to consider six factors in deciding whether to apply equitable estoppel. One of these is: "The doctrine may be applied to preclude a defendant who has been guilty of fraudulent or inequitable conduct from asserting the statute of limitations[.]" Hester v. Williams, 117 Wis. 2d 634, 644-45, 345 N.W.2d 426 (1984). In his complaint, Schauer asserted that the diocese and the school acted inequitably by threatening Schauer with a defamation suit if he told anyone about the alleged sexual contact. He alleged that the diocese and the school knew or should have known that Buzanowski had sexually abused children before and failed to disclose this fact. Schauer maintains that if the diocese and the school had disclosed it, he would have known earlier that he had an action against them.

¶ 18. The trial court never determined whether to apply estoppel. Thus, there is no exercise of discretion for us to review. Facts need to be developed to ascertain whether the diocese knew of Buzanowski's prior sexual assaults. In addition, there are questions of whether the diocese and the school actually made the threat, what caused the inducement to delay to cease, and whether the delay was reasonable. We therefore remand so the trial court may find facts and exercise its discretion to determine whether the diocese and school should be equitably estopped from raising the statute of limitations as a defense.

C. The Discovery Rule

¶ 19. Under the discovery rule, a claim accrues on the date an injury is discovered or with reasonable diligence should be discovered, whichever occurs first. Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 335 N.W.2d 578 (1983). Further, in Borello v. U.S. Oil Co., 130 Wis. 2d 397, 406-07, 388 N.W.2d 140 (1986), the supreme court stated that a claim "does not accrue until the nature of the injury and the cause — or at least a relationship between the event and the injury — is or ought to have been known to the claimant."

¶ 20. Schauer maintains he did not realize he had a claim for negligent retention and supervision of Buzanowski until shortly before filing the complaint. Schauer argues that he "experienced delayed discovery of his injuries and their causal relationship to Buzanowski's sexual abuse." He contends that, due to the actions of the diocese and the school, he was led to believe he had no right to take legal action for the sexual abuse. Thus, he maintains he filed timely based on the discovery rule.

¶ 21. However, Schauer's argument is undermined by the supreme court's decision in Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997), which is factually similar to this case. Doe was a consolidation of several sexual assault cases that had been dismissed by the trial court because the statute of limitations had expired. The victims asserted claims against the priests who committed the assaults. They also asserted claims against the churches and the Archdiocese of Milwaukee for negligent employment, training and supervision of the priests. Id. at 318-19. The victims alleged they could not discover their injuries earlier due to repressed memories, coping mechanisms, and psychological distress. Thus, they argued the discovery rule applied to their claims.

¶ 22. The supreme court noted that the victims knew the perpetrators as parish or school priests and knew the perpetrators engaged in the sexual contact. Thus, the victims knew the identity of the perpetrators and the nature of the injury no later than the time of the last sexual assault. Id. at 340-41.

¶ 23. The court further concluded that the victims had a duty to inquire into the injuries that resulted from the tortious activity. The court concluded

that because the acts complained of were conducted intentionally, and without the consent of the minor victims, that each of the five plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered that he or she was injured at the time of the assaults. Further, when a conscious person perceives an immediate injury, the causal link is obvious. We therefore also conclude, as a matter of law, that each of these five plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered the cause of their injury at least by the time of the last incident of assault.

Id. at 342 (citation omitted).

¶ 24. Importantly here, the court held that, as a matter of law, "a claim of repressed memory of past sexual abuse does not delay the accrual of a cause of action for non-incestuous sexual assault, regardless of the victim's minority and the position of trust occupied by the alleged perpetrator." Id. at 364. Thus, the supreme court concluded that the victims' complaints against the priests were barred by the statute of limitations.

¶ 25. As a result, the court determined it "need not address their claims based on respondeat superior and negligent employment theories. Plaintiffs' derivative causes of action against the Archdiocese and the churches accrued at the same time that the underlying intentional tort claims accrued, and similarly would be barred by the statute of limitations." Id. at 366 (citing Pritzlaff v. Donovan, 194 Wis. 2d 302, 312, 533 N.W.2d 780 (1995) (statute of limitations period for actions against the Archdiocese begins on same date as the cause of action accrued against the individual priest defendant)).

¶ 26. We must apply the Doe holding to this case. Schauer knew Buzanowski through church and school and knew that Buzanowski engaged in sexual contact with him. Schauer discovered or, in the reasonable exercise of diligence, should have discovered that he was injured at the time of the assault. Thus, Schauer's claim of negligent retention and supervision against the diocese and the school accrued at the same time as his claims against Buzanowski. Consequently, as a matter of law, the discovery rule does not apply to his claim against the diocese and the school.

D. Fiduciary Claims

¶ 27. Schauer argues he has pled viable claims for fiduciary fraud and breach of fiduciary duty. The point of this argument escapes us because the trial court did not rule otherwise. Instead, the trial court ruled that the claims were beyond the statute of limitations. Schauer only addresses the trial court's ruling in a one-sentence summary at the end of his fiduciary fraud argument. He states without elaboration that the claim is not time-barred because he did not know nor could he have known that he had the claim until shortly before he filed his complaint. Schauer does not even mention the issue of the statute of limitations in his breach of fiduciary duty argument.

¶ 28. Schauer's one-sentence assertion about the statute of limitations adds nothing to his previous discovery argument. Further, Doe once again governs. There, the victims alleged breach of fiduciary duty against churches and the archdiocese. Doe, 211 Wis. 2d at 328. The supreme court dismissed the derivative claims because they accrued at the time of the last assaults and thus were time-barred. Id. at 366-67. The same applies here. Schauer's fiduciary claims are derivative of the underlying assault. Thus, the claims accrued at the time the assault was committed. Schauer's claims are therefore time-barred.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions. No costs awarded.

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

       The motion to dismiss also argued that the First Amendment to the United States Constitution prohibited Schauer from maintaining an action against the church. The circuit court did not address this issue, and it is not raised in this appeal.


author: HOOVER, PJ.

text:
    Mark R. Zweber, Plaintiff-Appellant, v. Melar Ltd., Inc., Defendant-Respondent.
    Court of Appeals

      No. 04-0538.

      Submitted on briefs June 28, 2004.

    Decided August 3, 2004.

    2004 WI App 185
    (Also reported in 687 N.W.2d 818.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Eric J. Magnuson and Joseph S. Lawder of Rider Bennett, LLP of Minneapolis, MN.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Joe Thrasher of Thrasher, Doyle, Pelish & Franti, Ltd. of Rice Lake, WI.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Mark Zweber appeals a February 2004 nonfinal order of the circuit court denying his motion to amend a January 2004 order discharging the lis pendens he had filed against the real estate underlying this action. Zweber argues the lis pendens must remain until all the appellate rights in litigation are exhausted or expired. We agree and reverse the order.

Background

¶ 2. Zweber's complaint, filed in May 2003, sought among other things specific performance of a contract to purchase real estate from Melar Ltd., Inc. Zweben recorded a lis pendens with the Barron County Register of Deeds pursuant to Wis. Stat. § 840.10(1). Melar counterclaimed for slander of title.

¶ 3. In January 2004, the circuit court granted summary judgment to Melar, dismissing Zweber's complaint. It also denied Zweber's motion for summary judgment on Melar's counterclaim and specifically noted the slander of title action was still pending. The court directed Melar to prepare an order reflecting those determinations. The proposed order Melar prepared discharged the lis pendens, even though Melar had not moved for that relief and the court had not addressed the issue. The court signed the order the same day that Zweber received a copy.

¶ 4. At Zweber's request, the court held a telephone conference regarding the lis pendens order, staying it pending further argument. The court noted that Zweber could not appeal the order as a matter of right since the counterclaim was pending but rejected Zweber's argument that the lis pendens should remain in place until all avenues of appeal were exhausted. The court also stayed the discharge of the lis pendens for three weeks pending action from this court, but was disinclined to stay the order for any other reason, concluding that if any harm befell Zweber, money damages would provide an adequate remedy. Zweber filed a petition for leave to appeal, which we granted, along with a stay of the order discharging the lis pendens.

Discussion

¶ 5. Zweber contends that a lis pendens filed under Wis. Stat. § 840.10(1) should remain in place until the appeal period is expired or exhausted. Melar argues that a lis pendens need not continue when the only pleading justifying it — here, Zweber's request for specific performance of a land contract — has been dismissed and there is no guarantee that appellate rights will be pursued. The essential question, therefore, is at what point may a lis pendens be discharged. This requires analysis of both common law lis pendens and statutory lis pendens, presenting us with a question of law that we review independently of the circuit court. Gaugert v. Duve, 2001 WI 83, ¶ 15, 244 Wis. 2d 691, 628 N.W.2d 861.

¶ 6. In property law, a us pendens serves as notice of pending litigation that may affect real estate. At common law, the rule was that "persons acquiring an interest in property that was the subject of a lawsuit were conclusively bound by the result of the litigation and their interest in the real property was subject to the litigants' rights as finally determined by the court." Belleville State Bank v. Steele, 117 Wis. 2d 563, 571, 345 N.W.2d 405 (1984). Thus, one objective of common law us pendens was to preserve the status of the property pending the outcome of the litigation, thereby protecting the court's jurisdiction and giving finality to any judgment in the litigation. Id. at 571-72. The other objective at common law was notice: the commencement of judicial proceedings was considered so notorious that it served as constructive notice to prospective purchasers. Id.

¶ 7. There was, however, a jurisdictional limitation to common law us pendens. For property to be affected by the litigation, it had to be located within the territorial jurisdiction of the court hearing the litigation. Id. at 572. Even with this limitation, common law us pendens often yielded harsh results because purchasers lacking actual notice of pending litigation were nonetheless bound by its results. Id.

¶ 8. Many states, including Wisconsin, theretöre enacted us pendens statutes to require filing notice of litigation in the office where instruments affecting title were customarily recorded-like the register of deeds. Id. The first us pendens statute in Wisconsin was enacted in 1856. Id. at 573. This statute has the same objectives as the common law: protecting the finality of judgments by preserving the status quo of the property and providing notice to third parties of pending litigation. Id. at 574-75. The statute is not, however, subject to the territorial limitations of the common law because prospective purchasers need only consult a county's register of deeds to determine whether property is encumbered by a pending lawsuit. Id. at 575.

¶ 9. The current lis pendens statute in Wisconsin is Wis. Stat. § 840.10, which reads in relevant part:

(1) (a) In an action where relief is demanded affecting described real property which relief might confirm or change interests in the real property, after the filing of the complaint the plaintiff shall present for filing or recording in the office of the register of deeds of each county where any part thereof is situated, a lis pendens .... From the time of filing or recording every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the proceedings in the action to the same extent and in the same manner as if the purchaser or encumbrancer were a party thereto ....
(3) The lis pendens may be discharged upon the condition and in the manner provided by s. 811.22 for discharging an attachment or by s. 806.19(l)(a) for satisfying a judgment.... (Emphasis added.)

¶ 10. We conclude that, based on the language of Wis. Stat. § 840.10 and the objectives of both common law and statutory lis pendens, a lis pendens may not be discharged until all opportunities for appeal expire or are exhausted, except as provided otherwise by statute.

¶ 11. Wisconsin Stat. § 840.10(1) provides that subsequent purchasers "shall be bound by the proceedings in the action" to the same extent as the actual parties. In any given action, the parties would naturally be hound by the results of appellate proceedings. Since purchasers are to be bound as if they were parties, they too must be bound by appellate proceedings. Thus, discharging the lis pendens before the expiration or exhaustion of the appellate process defeats both the notice and preservation objectives.

¶ 12. Moreover, the determination that a lis pen-dens remains in effect until the appellate avenues are expired or exhausted is consistent with Wis. Stat. § 840.10(3), the only part of the statute that explains how a lis pendens may be discharged. Under § 840.10(3), a lis pendens may only be discharged upon the condition and in the manner specified in Wis. Stat. §§ 811.22 or 806.19(l)(a). These statutes read, in relevant part:

811.22 Return of property; damages on dismissal; entry in register's office. When the defendant recovers judgment... subject to the plaintiffs rights on appeal, and he or she may maintain an action [for damages from the attachment].... Upon the entry of final judgment in favor of the defendant or on satisfaction of a plaintiffs judgment, the clerk of court shall, if real estate was attached, certify the fact of the judgment or satisfaction, and on recording the' certificate with the register of deeds in any county in which attached lands are situated the register shall enter the certificate upon the records of his or her office in discharge of the attachments.
806.19 Satisfaction of judgments. (1) (a) A judgment may be satisfied in whole or in part... by an instrument signed and acknowledged by the owner .. . signed and entered on the judgment and lien docket in the county where first entered ....

¶ 13. An attachment is released under Wis. Stat. § 811.22 when either (1) the defendant finally prevails against the plaintiff and the claims used to obtain the attachment are extinguished, or (2) the plaintiff prevails and the defendant satisfies the judgment so that the attachment is no longer needed to ensure payment. However, the defendant's final judgment is subject to the plaintiffs rights on appeal, and the plaintiffs judgment usually remains unsatisfied until after the appellate process is complete — it would be unusual for a defendant to satisfy the judgment and then appeal it. For the same reason, Wis. Stat. § 806.19(l)(a) — the satisfaction of judgment statute — implicitly relies on exhaustion or expiration of the appeals period because a defendant has no reason to satisfy a judgment he or she anticipates will be overturned on appeal.

¶ 14. In other words, the discharge of the lis pendens under Wis. Stat. § 840.10(3) is contemplated as the final, closing step in litigation the same way that the discharge of an attachment or a satisfaction of judgment concludes a case. After all the appeals are exhausted, either the plaintiff will have prevailed and the defendant will have to comply with the court's order regarding disposal of property or the defendant will prevail and the plaintiffs claim against the property will be extinguished. In either case, once the property is handled according to the judicial order, circuit court personnel will be able to remove the lis pendens. Even if the statute did not provide any manner for discharge, the lis pendens itself would naturally cease to operate once the appellate process has expired or been exhausted because there will no longer be pending litigation.

¶ 15. A lis pendens under Wis. Stat. § 840.10(1) must be maintained as long as there are pending proceedings in an action, including appellate proceedings. Maintaining the lis pendens serves the dual objectives found in the statute and common law, particularly the notice objective. Once all proceedings are concluded, the court may order the lis pendens discharged consistent with Wis. Stat. § 840.10(3).

By the Court. — Order reversed.

       We granted leave to appeal the nonfinal order on March 16, 2004. The January order both discharged the lis pendens and dismissed Zweber's case against Melar. That order dismissing Zweber's claim has not been appealed because of a pending counterclaim. However, our decision reversing the February order effectively reverses the portion of the January order discharging the lis pendens. The portion of the January order dismissing Zweber's claims against Melar is not before this court and is not affected by this appeal.

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

       Statutory lis pendens is wholly irrelevant between the parties to a lawsuit because they have actual notice of the pending litigation.

       Melar complains that Zweber failed to seek permission to appeal the dismissal of his contract action. However, because the slander of title counterclaim was still pending, Zweber was not required to appeal the merits of the contract claim until the counterclaim was also resolved. See Brownsell v. Klawitter, 99 Wis. 2d 407, 410, 299 N.W.2d 292 (Ct. App. 1980). Melar argues its slander of title counterclaim is analogous to a fee-shifting statute, like a statute allowing for attorney fees, and the rule on pending counterclaims therefore does not apply. We disagree. Slander of title is a tort. Wis. Stat. § 706.13(1).

       It is possible to dispute the meaning of proceedings. However, in the context of lis pendens, for the reasons explained in the main text, it makes the most sense to include appellate proceedings in the definition. Indeed,
      'Proceeding' is a word much used to express the business done in courts. .. . [I]t may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action .... As applied to actions, the term 'proceeding1 may include ... (11) the taking of the appeal or writ of error; (12) the remittitur... ; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort.
      Black's Law Dictionary 1221 (7th ed. 1999) (quoting Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899)).

       For example, suppose the lis pendens in this case were discharged before an appeal of the merits. Zweber appeals and prevails on the specific performance claim but Melar has, in the meantime, sold the property. The courts would be placed in the difficult position of either enforcing Zweber's contractual rights at the expense of the bona fide purchaser or protecting the purchaser's rights at Zweber's expense. Maintaining the lis pendens throughout the appellate process avoids this conundrum. Potential purchasers have notice of the pending appellate determinations and simultaneously the status quo of the property is maintained. While Melar complains this unfairly burdens the property, we note that a lis pendens does not prohibit transfer of title, but only makes it subject to a future judicial determination. And, when a lis pendens is falsely or frivolously filed, a slander of title claim is the appropriate remedy. Wis. Stat. § 706.13(1); Belleville State Bank v. Steele, 117 Wis. 2d 563, 575, 345 N.W.2d 405 (1984).


author: NETTESHEIM, J.

text:
    Amy Remiszewski, Plaintiff-Respondent-Cross-Appellant, v. American Family Insurance Company, Defendant-Appellant-Cross-Respondent, Rockwell International Corporation, Defendant.
    Court of Appeals

      No. 03-2653.

      Submitted on briefs June 14, 2004.

    Decided August 4, 2004.

    2004 WI App 175
    (Also reported in 687 N.W.2d 809.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of James T. Murray, Jr. and Frederick J. Smith, of Peterson, Johnson & Murray, S.C. of Milwaukee.
    On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Victor C. Harding of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C. of Milwaukee.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 10-19-2004.

   NETTESHEIM, J.

¶ 1. This opinion addresses an appeal and a cross-appeal in an insurance coverage dispute between American Family Insurance Company and its insured, Amy Remiszewski. At summary judgment, the trial court ruled that the reducing clauses in the three American Family policies at issue were unenforceable. American Family appeals this ruling. However, the court also ruled that the anti-stacking provisions in the policies were enforceable. Remiszewski cross-appeals this ruling.

¶ 2. We conclude that both the reducing clauses and the anti-stacking provisions of the American Family policies are enforceable. We therefore reverse the trial court order as to American Family's appeal and affirm as to Remiszewski's cross-appeal. We remand for further proceedings.

BACKGROUND

¶ 3. Remiszewski suffered severe personal injuries as a result of an accident which occurred when she was a passenger in Doug Piotrowski's vehicle. Remisze-wski incurred approximately $300,000 in medical bills as a result of the accident. Piotrowski was insured by American Standard Insurance Company, which paid Remiszewski its full policy limits of $100,000.

¶ 4. Remiszewski was an insured under three separate American Family policies issued to her father, Joseph Remiszewski. Each American Family policy contained an underinsured motorist (UIM) provision with limits of $250,000. The UIM coverage endorsement accompanying the American Family policies contains the following anti-stacking and reducing clauses:

LIMITS OF LIABILITY
The limits of liability of this coverage as shown in the declarations apply, subject to the following:
1. The limit for each person is the maximum for all persons as the result of bodily injury to one person in any one accident.
We will pay no more than these máximums no matter how many vehicles are described in the declarations, or insured persons, claims, claimants, policies or vehicles are involved.
The limits of liability of this coverage may not be added to the limits of liability of any similar coverage under any other policy an insured person or any member of an insured persons household may have. The limits of liability of this coverage will be reduced by:
1. A payment made or amount payable by or on behalf of any person or organization which may be legally bable, or under any collectible auto liability insurance, for loss caused by an accident with an under insure d motor vehicle.

¶ 5. Each American Family policy also includes an "OTHER INSURANCE" provision, which states in part:

If there is other similar insurance on a loss covered by this endorsement, we will pay our share according to this pobcy's proportion of the total limits of all similar insurance.

¶ 6. Remiszewski sought full payment under all three American Family policies. American Family rejected the demand and instead agreed to pay Remisze-wski $150,000, representing the $250,000 limit of liability under one policy, reduced by the $100,000 paid by Piotrowski's policy.

¶ 7. Remiszewski responded with this declaratory judgment action pursuant to Wis. Stat. § 806.04 (2001-02). Remiszewski argued that the totality of the language in the American Family policies produced an ambiguity as to American Family's UIM coverage and, as such, should be construed against American Family. Remiszewski also relied on the "OTHER INSURANCE" provision of the American Family policies, which she labels a "pro-stacking" provision. Remiszewski asked the trial court to "add the $250,000 policy limits of UIM coverage in all three policies pursuant to the 'pro stacking' clause in the UIM endorsement" or "declare the UIM provisions with respect to anti stacking as ambiguous in the context of the entire contract and, therefore, void as a matter of law." Remiszewski also asked the court to find the reducing clause contained in each of the policies to be ambiguous and contrary to the reasonable expectations of an insured and, therefore, void as set forth in Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223.

¶ 8. In its answer, American Family denied that its policies were ambiguous and asked the trial court to declare that both the anti-stacking and reducing clauses were valid and enforceable.

¶ 9. Both parties moved for summary judgment. Following briefing by the parties and a hearing, the trial court ruled that: (1) American Family's reducing clauses were illusory, contrary to statute and unenforceable; and (2) American Family's anti-stacking clauses were unambiguous and enforceable. The court's ruling was later reduced to a written decision and followed by an order dismissing Remiszewski's complaint. American Family appeals and Remiszewski cross-appeals.

DISCUSSION

Standard of Review

¶ 10. We review a grant of summary judgment by applying the same methodology as the circuit court. Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 17, 263 Wis. 2d 207, 665 N.W.2d 181. Under Wis. Stat. § 802.08(2), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Here, neither party argues that there are material issues of fact. Therefore, our inquiry is limited to the interpretation of American Family's insurance policies.

¶ 11. Insurance contract interpretation presents a question of law that is reviewed de novo. Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis. 2d 617, 665 N.W.2d 857. An insurance policy is construed to give effect to the intent of the parties as expressed in the language of the policy. Id. Therefore, the first issue in construing an insurance policy is to determine whether an ambiguity exists regarding the disputed coverage issue. Id., ¶ 13. Insurance policy language is ambiguous "if it is susceptible to more than one reasonable interpretation." Id. (citation omitted). If there is no ambiguity in the language of an insurance policy, it is enforced as written, without resort to rules of construction or applicable principles of case law. Id. If there is an ambiguous clause in an insurance policy, we will construe that clause in favor of the insured. Id.

Appeal: Reducing Clause

¶ 12. American Family appeals the trial court's ruling that the reducing clause is "illusory, contrary to statute, and unenforceable." Each of Remiszewski's three American Family policies provided for $250,000 in UIM coverage. Piotrowski, the driver of the vehicle in which Remiszewski was injured, was insured by American Standard with liability limits of $100,000. American Standard paid its limits of liability ($100,000) under Piotrowski's policy to Remiszewski. In response to Remiszewski's demand for full payment under all three policies, American Family instead offered to pay its policy limits of $250,000 under a single policy, reduced by the $100,000 already paid to Remiszewski under Piotrowski's policy.

¶ 13. Wisconsin Stat. § 632.32(5)(i)l provides that an insurance policy "may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by . . . [a]mounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made."

¶ 14. The reducing clause in the American Family policies state that "[t]he limits of liability of this coverage will be reduced by: ... [a] payment made or amount payable by or on behalf of any person or organization which may be legally liable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured. motor vehicle."

¶ 15. Specifically, Remiszewski targets the phrase "amount payable." She notes that this language is not contained in Wis. Stat. § 632.32(5)(i)l, and therefore claims that the phrase renders the UIM coverage illusory because it could include Piotrowski, who has not yet been released from liability and who "may be legally liable." Because there may yet be an "amount payable" to her from Piotrowski, Remiszewski argues that she purchased nothing when she contracted and paid for UIM coverage, making the contract illusory.

¶ 16. American Family contends that Remiszewski's argument under the "amount payable" language is a non-issue because American Family never invoked this provision as a basis for rejecting Remiszewski's demand for full coverage. Rather, American Family invoked the "payment made" provision when reducing Remiszewski's UIM coverage — a provision which Remiszewski does not challenge. American Family argues that contrary to Folkman, Remiszewski is requesting this court to "ferret" through American Family's policies to unearth ambiguity when "inconsistencies in the context of a policy must be material to the issue in dispute and be of such a nature that a reasonable insured would find an alternative meaning." Folk-man, 264 Wis. 2d 617, ¶ 32.

¶ 17. We agree with American Family. Here, Remiszewski is challenging American Family's right to reduce her payment by the amount already paid to her from Piotrowski's policy. While the "amount payable" provision would arguably permit further reductions, it would not cause a reasonable insured to believe that reductions would not be made for actual payments already made from other sources. We therefore reject Remiszewski's contention that the "amount payable" language renders the reducing clauses ambiguous as applied in her case. The fact that an insurance policy may include arguably ambiguous language upon which the insurer has not relied is of no consequence and will not defeat the right of an insurer to reduce its limits of liability under a valid provision. See, e.g., Van Erden v. Sobczak, 2004 WI App 40, ¶ 25, 271 Wis. 2d 163, 677 N.W.2d 718 (holding that a catchall phrase in a reducing clause that contained language not found in Wis. Stat. § 632.32(5)(i) did not render the clause ambiguous; noting that the language was not in dispute and did not apply to the facts at bar), review denied, 2004 WI 114, 273 Wis. 2d 655, 684 N.W.2d 136 (2004) (No. 02-1595).

¶ 18. As an alternative ground for striking American Family's reducing clause, Remiszewski argues that there exists a number of defects in American Family's policy. Relying on Schmitz, Remiszewski contends that American Family's reducing clause is ambiguous when considered in light of the entire policy. See Folkman, 264 Wis. 2d 617, ¶ 19 ("Occasionally a clear and unambiguous provision may be found ambiguous in the context of the entire policy.").

¶ 19. In support of her argument that the American Family policy contains contextual ambiguity, Remiszewski cites three specific provisions in the policy: (1) the policy directs the insured to the declarations page to derive coverage and limits; (2) the policy's quick reference page makes no reference to UIM coverage; and (3) the policy represents that UIM máximums are attainable when they are not. We reject Remiszewski's attempt to liken American Family's policy to the one issued in Schmitz.

¶ 20. First, the policy in Schmitz was twenty-nine pages long. Schmitz, 255 Wis. 2d 61, ¶ 52. By our count, American Family's policy is seventeen pages long, including the declarations page, quick reference page, and UIM endorsement. Second, the declarations page in Schmitz did not reference UIM coverage. Id., ¶¶ 53, 62. Here, American Family's declarations page specifically refers the insured to the UIM endorsement and sets forth the limits of UIM coverage. While the quick reference page refers to uninsured motorist coverage but not UIM coverage, the declarations page, which precedes the quick reference page, alerts the insured to the UIM endorsement. Moreover, the quick reference page begins with the following admonition: "The following Quick Reference is only a brief outline of some important features in your policy and is not the insurance contract. The policy details the rights and duties of you and your insurance company. Read your policy carefully." Finally, as this court noted in Commercial Union Midwest Insurance Co. v. Vorbeck, 2004 WI App 11, ¶¶ 31-32, 269 Wis. 2d 204, 674 N.W.2d 665, review denied, 2004 WI 20, 269 Wis. 2d 200, 675 N.W.2d 806 (Wis. Feb. 24, 2004) (No. 03-0100), the failure of a quick reference index to refer to the UIM endorsement is not alone sufficient to render a provision contextually ambiguous.

¶ 21. Finally, the ambiguity in the Schmitz policy rested in large part on two additional pages in that policy which are not contained in the American Family policy. First, the fifth page of the Schmitz policy contained a document entitled "Availability of Underin-sured Motorists Coverage — Wisconsin." Schmitz, 255 Wis. 2d 61, ¶ 66. That document explained that UIM coverage "will pay the remainder of the bodily injury damages up to the limit of liability you select for underinsured motorists coverage." Id. This definition of UIM coverage gave the false expectation that the UIM coverage purchased would pay up to the limit of liability without a reduction. Second, the Schmitz policy contained a schedule or declarations page for UIM liability limits of $250,000 for each person capped by $500,000 for each accident. Id., ¶ 64. The schedule failed to inform that the dollar limits represented combined payments from all sources. Id., ¶ 65.

¶ 22. The Schmitz court held that the policy in that case was "organizationally complex and plainly contradictory." Id., ¶ 72.

It sends several false signals to the insured. It is not user-friendly. The notice of availability of UIM coverage, together with the "maximum of liability" listed on the declarations page and on the split UIM limits page, combine to create the confusion, ambiguity, and illusory coverage in the context of the entire policy. This renders an otherwise unambiguous, although poorly labeled, reducing clause unenforceable.

Id. The same cannot be said of American Family's policy in this case, which is relatively short and does not emit any of the false signals as in the Schmitz policy.

¶ 23. Remiszewski also contends that the limits of liability provision in the UIM endorsement is misleading in that it provides that American Family "will pay no more than [the] máximums" set forth in the declarations page. Remiszewski argues that because the maximum limits for UIM liability coverage are not attainable if American Family is permitted to reduce, the UIM provision is deceptive and contradictory. However, we have previously rejected the argument that a "maximum limits" provision represents an unequivocal commitment by an insurer to pay the maximum limits of its liability to the exclusion of other relevant provisions in the policy. Vorbeck, 269 Wis. 2d 204, ¶ 39. Here, the "maximum limits" language is immediately followed in the "Limits of Liability" section by the reducing clause. Given the proximity and clarity of these provisions, we conclude that the "maximum limits" language does not render the policy susceptible to more than one meaning.

¶ 24. In Folkman, 264 Wis. 2d 617, the supreme court observed,

Some ambiguity is unavoidable because words are unable to anticipate every eventuality. But other ambiguity is the result of the insurer's imperfect preparation of the policy. A clearly written policy promotes a good relationship between the insurer and the insured and protects the insured from future misunderstandings. The insurer's best defense against an unwarranted but appealing claim is an unambiguous policy.
Occasionally a clear and unambiguous provision may be found ambiguous in the context of the entire policy. Insurers dislike this principle. Yet, the opposite principle — that courts must mechanically apply a clear provision regardless of the ambiguity created by the organization, labeling, explanation, inconsistency, omission, and text of the other provisions in the policy — is not acceptable.

Id., ¶¶ 18-19 (citations omitted). The question in reviewing an insurance policy "is whether the provisions under inquiry lead to a reasonable alternative meaning because of the language, location, labeling, or inconsistency with other provisions." Vorbeck, 269 Wis. 2d 204, ¶ 34. We conclude that the reducing clause contained in the UIM endorsement is clear and unambiguous. We further conclude that neither the structure and organization of American Family's policy, nor any provision therein, renders the reducing clause contextually ambiguous.

Cross-Appeal: Anti-Stacking Provision

¶ 25. Remiszewski cross-appeals the trial court's ruling upholding the anti-stacking provisions of the American Family policies. Each policy provided UIM coverage with a $250,000 limit of liability accompanied by an anti-stacking provision which states:

We will pay no more than these máximums no matter how many vehicles are described in the declarations, or insured persons, claims, claimants, policies or vehicles are involved.
The limits of liability of this coverage may not be added to the limits of liability of any similar coverage under any other policy an insured person or any member of an insured persons household may have.

¶ 26. This anti-stacking provision is authorized under Wis. Stat. § 632.32(5)(f), and Remiszewski does not argue otherwise. However, Remiszewski contends that the American Family policies are confusing because they fail to include the following underlined language in the statute:

A policy may provide that regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid the limits for any coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident. (Emphasis added.)

Remiszewski contends that without the underlined language an insured is left guessing as to what information the policy is trying to convey about adding or not adding limits from other policies.

¶ 27. We reject Remiszewski's argument. Even absent the underlined language, the anti-stacking provision clearly conveys that regardless of the number of policies held by a claimant, American Family's coverage will not exceed the UIM máximums. Further, this same American Family anti-stacking provision was upheld in Sugden v. Bock, 2002 WI App 49, ¶ 6, 251 Wis. 2d 344, 641 N.W.2d 693. There, the court held that the statutes permit insurance policies to limit stacking and that, in doing so, the anti-stacking provision need not be a word-for-word mirror of Wis. Stat. § 632.32(5)(f). Sugden, 251 Wis. 2d 344, ¶¶ 8-9.

¶ 28. Remiszewski additionally contends that American Family's anti-stacking provision conflicts with what she characterizes as a "pro-stacking" provision in the UIM endorsement. That so-called "pro-stacking" provision is the "OTHER INSURANCE" section of the policies which provides: "If there is other similar insurance on a loss covered by this endorsement, we will pay our share according to this policy's proportion of the total limits of all similar insurance." In a related argument, Remiszewski also contends that the anti-stacking provision should be contained in the "OTHER INSURANCE" provision.

¶ 29. We begin by rejecting Remiszewski's contention that the "OTHER INSURANCE" provision is a "pro-stacking" provision. The purpose of an "other insurance" provision is to define the primary and excess coverage between policies, see Wis. Stat. § 631.43(1), and such a provision "does not affect the rights of insurers to exclude, limit or reduce coverage" via anti-stacking provisions pursuant to Wis. Stat. § 632.32(5)(f), see § 631.43(3). The purposes of the two provisions at issue are separate and distinct.

¶ 30. Next, we reject Remiszewski's contention that American Family's anti-stacking provision should have been included in the "OTHER INSURANCE" section of the policy, which immediately follows the "LIMITS OF LIABILITY" section. The anti-stacking provision operates to limit American Family's liability and, as such, American Family properly included it in the section of the UIM endorsement entitled, "LIMITS OF LIABILITY."

¶ 31. Given the structure of the American Family policies and the language of the two provisions, which state distinct purposes, we conclude that a reasonable person reading the anti-stacking language and the other insurance clause would understand that the anti-stacking provision is a limit of liability while the "OTHER INSURANCE" clause pertains to the manner in which American Family will address the existence of other primary coverage. A reasonable insured would not be misled or receive a false signal by the location or language of the anti-stacking provision.

CONCLUSION

¶ 32. We conclude that both the reducing clauses and the anti-stacking provisions of the American Family policies are clear and unambiguous and are therefore enforceable. We reverse the trial court's grant of summary judgment to Remiszewski invalidating the reducing clauses. However, we affirm the court's grant of summary judgment to American Family upholding the anti-stacking provisions. We remand for further proceedings consistent with this opinion.

By the Court. — Order affirmed in part; reversed in part and cause remanded.

       The basic policy language in all three policies is virtually identical.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
      Remiszewski also requested declaratory judgment against RockweU International Corporation seeking a determination that Rockwell's group employee health plan did not entitle RockweU to participate in any third party/UIM proceeds until Remiszewski has been made whole. This claim was later dismissed without prejudice and is not at issue on appeal.

       By order of the court of appeals dated September 5, 2003, the parties' initial appeals were dismissed as taken from a nonfinal order. The parties then entered into a stipulation for dismissal and they appeal from the ensuing order for dismissal.