author: CANE, C.J.

text:
    Carla Severude, Plaintiff-Appellant, v. American Family Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 01-1887-FT.

      Submitted on briefs October 10, 2001.

      Decided December 28, 2001.

    2002 WI App 33
    (Also reported in 639 N.W.2d 772.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Dennis M. Sullivan of Herrick, Hart, Duehemin, Spaeth, Sullivan & Schumacher, S.C. of Eau Claire.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Terrence M. Gherty of Gherty & Gherty, S.C. of Hudson.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Carla Severude appeals from a summary judgment dismissing her wrongful death action against American Family Mutual Insurance Company. Severude's daughter, Alyssa, died in an automobile accident in Severude's car. Severude, who received $100,000 in uninsured motorist benefits from her automobile insurance policy for Alyssa's death, argues that the circuit court erroneously concluded that she was not entitled to collect an additional $100,000 in bodily injury liability benefits from the same policy. We affirm the judgment.

Statement of Facts

¶ 2. Because this case arises on a motion for summary judgment, we accept the facts alleged by the plaintiff as true. See Pinter v. American Fam. Mut. Ins. Co., 2000 WI 75, ¶ 4, 236 Wis. 2d 137, 613 N.W.2d 110. On September 17, 1997, Severude's two daughters, sixteen-year-old Sonya and twelve-year-old Alyssa, went to visit their father's grave. Sonya, who had a valid driver's license, received permission from Severude to drive Severude's car to the cemetery.

¶ 3. On the way to the cemetery, Sonya picked up her fifteen-year-old friend, Andy. After visiting the grave, Sonya asked Andy if he wanted to drive, even though she knew Andy did not have a driver's license. Andy accepted. While driving, Andy lost control of the car and it rolled over, throwing Alyssa from the car and killing her.

¶ 4. Severude's automobile insurance policy through American Family contained a bodily injury liability limit of $100,000 per person, per occurrence. The liability limit for bodily injury to two or more persons was $300,000 per occurrence. The policy also provided uninsured motorist coverage of $100,000/$300,000 for each accident.

¶ 5. Severude filed a claim for uninsured motorist benefits for damages arising from Alyssa's death. American Family paid its $100,000 uninsured motorist policy limits based on Andy's negligent operation of the vehicle. Severude subsequently filed a wrongful death action against American Family seeking $100,000 in bodily injury liability payments based on Sonya's negligent entrustment of the vehicle to Andy.

¶ 6. American Family filed a motion for summary judgment on grounds that the reducing clause in the liability section of the policy reduced Severude's potential payment under that section by the amount of uninsured motorist benefits she received under the same policy. The circuit court granted summary judgment in American Family's favor and denied Severude's motion for reconsideration. This appeal followed.

¶ 7. Severude does not dispute the legality or application of the reducing clause in the policy's liability coverage section. Her argument is based on her theory that there were two "occurrences" under the policy: Andy's negligent operation of the vehicle and Sonya's negligent entrustment of the vehicle. Accordingly, she argues that the liability coverage for Sonya's negligent entrustment cannot be reduced by the uninsured motorist benefits paid for Andy's negligent operation.

¶ 8. We conclude that there was only one occurrence under the policy. Furthermore, we conclude that when the reducing clause is applied, Severude is not entitled to additional payment. Therefore, we affirm the summary judgment in American Family's favor.

Standards of Review

¶ 9. This appeal involves the interpretation of an insurance policy and, therefore, presents a question of law that we review de novo. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 810, 456 N.W.2d 597 (1990). Here, the circuit court's interpretation of the insurance policy was decided on a motion for summary judgment. Our review of the trial court's grant of summary judgment is also de novo, and we apply the same standards and methods as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). That methodology has been described many times, and we need not repeat it here in detail. Vultaggio v. GMC, 145 Wis. 2d 874, 881, 429 N.W.2d 93 (Ct. App. 1988).

Discussion

¶ 10. Severude argues that she is entitled to $100,000 in liability coverage benefits for Alyssa's wrongful death based on Sonya's negligent entrastment of the vehicle to Andy. The liability section of the policy provides in relevant part:

The limits of liability shown in the declarations apply, subject to the following:
1. The bodily injury liability limit for "each person" is the maximum for all damages sustained by all persons as the result of bodily injury, to one person in any one occurrence.
Any amount payable under this coverage to or for an injured person will be reduced by any payment made to that person under the Uninsured Motorist coverage of this policy.

¶ 11. As indicated, Severude does not contest the validity of the reducing clause, the latter paragraph, on grounds that it violates Wis. Stat. § 632.32 or provides illusory coverage. Rather, she contends that the reducing clause is inapplicable because the $100,000 in uninsured motorist coverage that she received was payable for Andy's negligent operation, a separate occurrence from Sonya's negligent entrustment.

A. Definition of "occurrence"

¶ 12. Resolution of this case requires us to examine the meaning of the word "occurrence," which is not specifically defined in the policy. Severude argues that because the policy does not define the term, we should apply the "commonly understood definition." She cites the dictionary definition of "occurrence" as "1. the act or fact of occurring 2. something that occurs; event; incident."

¶ 13. We agree that language in an insurance policy should be given its common, everyday meaning. See Paape v. Northern Assur. Co., 142 Wis. 2d 45, 51, 416 N.W.2d 665 (Ct. App. 1987). When a policy's terms are clear and unambiguous on their face, the policy must not be rewritten by construction. Smith, 155 Wis. 2d at 811. Words or phrases in a policy are ambiguous when they are reasonably susceptible to more than one construction. Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992).

¶ 14. Webster's Third New Int'l Ditionary 1561 (unabr. 1993), defines occurrence as "Something that takes place; esp.: something that happens unexpectedly and without design: happening. The definition in Black's Law Dictionary is consistent, defining "occurrence" as "Something that happens or takes place; specif., an accident, event, or continuing condition that results in personal injury or property damage that is neither expected nor intended from the standpoint of an insured party." Black's Law Dictionary 1107 (7th ed. 1999). The entry also notes that this is the standard definition of the term in most liability policies. Id.

¶ 15. Although Severude would define "occurrence" as an event, she argues that the terms "occurrence" and "accident" are not synonymous. Rather, she argues, "occurrence" is broader and means more than "accident." Even if this is true, we reject Severude's conclusion that a reasonable construction of the term "occurrence" as it appears in this policy refers to each negligent act that may lead to a car accident.

¶ 16. The policy provides coverage for "bodily injury to one person in any one occurrence." (Emphasis added.) The reasonable interpretation of the word occurrence is that it refers to the event of injury. See Bankert v. Threshermen's Mut. Ins. Co., 110 Wis. 2d 469, 481, 329 N.W.2d 150 (1983) ("It is 'occurrences' that are insured against, not negligent acts."). Here, Alyssa was not injured when Sonya negligently entrusted the car to Andy or even when he drove negligently. Andy's negligent driving and Sonya's negligent entrustment may have led to the event, but the event of injury itself did not occur until the car rolled, throwing Alyssa from the car and fatally injuring her. Because there was a single occurrence, there is liability coverage available to pay $100,000 in damages.

B. Application of the. reducing clause

¶ 17. The reducing clause provides, "Any amount payable under this coverage to or for an injured person will be reduced by any payment made to that person under the Uninsured Motorist coverage of this policy." It is undisputed that $100,000 is payable under the liability coverage of the policy (for bodily injury to one person in one occurrence), and that Severude already received $100,000 in uninsured motorist benefits. Therefore, application of this reducing clause dictates that Severude is not entitled to an additional payment of $100,000.

¶ 18. Severude does not argue that the reducing clause renders the liability coverage illusory, even though Sonya, a tortfeasor insured under the policy, will be denied liability protection because Severude already collected uninsured motorist benefits. She also does not argue that liability reducing clauses are generally invalid under the motor vehicle insurance policy statute, Wis. Stat. § 632.32. Instead, she presents only a single challenge to the application of the reducing clause: the application of Iaquinta v. Allstate Ins. Co., 180 Wis. 2d 661, 510 N.W.2d 715 (Ct. App. 1993), which she contends requires extended coverage under the policy.

¶ 19. In Iaquinta, a reckless driver and the car's owner who negligently entrusted the car to the driver were both insureds under the owner's automobile liability policy. Id. at 664. Alice Iaquinta, who was injured when the driver struck her car, argued that there were two separate and distinct acts of negligence (negligent entrustment and negligent driving) and, therefore, she was entitled to seek twice the bodily injury liability limit of $25,000. Id. at 663-64.

¶ 20. Although Iaquinta concluded that the plaintiff was entitled to seek $50,000 in coverage, the court's reasoning was not based on Iaquinta's assertion that there were two separate negligent acts. Rather, it was based on the reasoning of Miller v. Amundson, 117 Wis. 2d 425, 345 N.W.2d 494 (Ct. App. 1994), which held that where the named insured and an additional insured are actively negligent, the omnibus statute required that liability coverage be provided to both tortfeasors. See Iaquinta, 180 Wis. 2d at 665-66. This provides the named insured with the coverage that the insured reasonably expected and the additional insured with coverage to which he or she is entitled. See Miller, 117 Wis. 2d at 430-31.

¶ 21. Iaquinta recognized Wis. Stat. § 632.32(3) (1991-92), as the specific statute requiring that both tortfeasors be provided coverage. This statute has not been amended and provides in relevant part:

RequiRed PROVISIONS. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.

¶ 22. Although Wis. Stat. § 632.32(3)(a) allowed the plaintiff in laquinta to collect twice the bodily injury liability limit, we conclude that Iaqunita is distinguishable. As laquinta explicitly states, Miller requires the provision of full bodily injury liability coverage to each insured tortfeasor "only in cases where both the named insured and the additional insured are actively negligent." See laquinta, 117 Wis. 2d at 666 (emphasis added). Here, there is only one negligent insured or additional insured: Sonya. Accordingly, laquinta and § 632.32(3)(a) do not require that American Family pay twice the bodily injury liability limits.

Conclusion

¶ 23. We conclude that there was only one occurrence under the liability policy. When the reducing clause is applied, Severude's potential recovery of $100,000 in bodily injury liability benefits is reduced by the $100,000 in uninsured motorist benefits that she already received. Because she is not entitled to additional benefits, we affirm the circuit court's summary judgment in American Family's favor.

By the Court. — Judgment affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All statutory references are to the 1997-98 version unless otherwise noted.

       Accordingly, we will assume for purposes of this opinion that reducing clauses in liability coverage sections are permissible.

       Accordingly, we do not address American Family's argument that Iaquinta v. Allstate Ins. Co., 180 Wis. 2d 661, 510 N.W.2d 715 (Ct. App. 1993), was legislatively overruled by the creation of Wis. Stat. § 632.32(5)(g), (i) and (j).


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    In re the Paternity of Danielle L.G.: Barbara R.K., Petitioner-Appellant, v. James G., Respondent-Respondent.
    Court of Appeals

      No. 01-1219.

      Submitted on briefs November 19, 2001.

    Decided January 3, 2002.

    2002 WI App 47
    (Also reported in 641 N.W.2d 175.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Steven L. Miller of Miller & Miller, River Falls.
    On behalf of the respondent-respondent, the cause was submitted on the brief of John R. Shull, Jr. of Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau.
    On behalf of Danielle L.G., the cause was submitted on the brief of John Halloran Heide of Everson, Whitney, Everson & Brehm, S.C., Green Bay.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Barbara R.K. appeals an order modifying custody and placement of her child in a post-judgment paternity action. She claims the circuit court erred by denying her request for substitution of judge. She argues that: (1) a timely filed judicial substitution request is not rendered void by failing to mail a copy of the request to the named judge; (2) review by the chief judge is not required to preserve the issue for appeal; and (3) a subsequent stipulation resolving contested issues does not waive the right to appeal the denial of a request for substitution of judge. We conclude that review by the chief judge under Wis. Stat. § 801.58(2) is a necessary prerequisite to appeal a denial of a request for substitution of judge. Because Barbara did not seek review by the chief judge, we affirm the order.

BACKGROUND

¶ 2. This case arises out of motions to modify a paternity judgment with respect to custody and placement of Danielle L.G., the child of Barbara R.K. and James G. Before the family court commissioner, the parties stipulated to everything except summer placement, transportation and medical expenses. On May 22, 2000, the commissioner decided the unresolved issues. James then sought review in circuit court. Judge Warpinski was assigned to hear the case.

¶ 3. On July 27, 2000, Barbara filed a request for substitution of judge pursuant to Wis. Stat. § 801.58(1). The judge denied her request because he did not receive a copy of the request and there was no showing that a copy had been mailed to him as required by the statute. The judge did give Barbara an opportunity to file an affidavit to establish the mailing. However, Barbara never filed the affidavit. Barbara did not seek review by the chief judge of the denial of her request for substitution.

¶ 4. On February 7, 2001, the circuit court held a hearing. Barbara and James stipulated to all the issues. They agreed that Barbara would be awarded sole custody. They also agreed to the extensive placement recommendations of the guardian ad litem. The circuit court approved the stipulation and entered an order amending the judgment. Barbara then appealed.

STANDARD OF REVIEW

¶ 5. This case involves the interpretation of Wis. Stat. § 801.58(2). Statutory interpretation and the application of a statute are questions of law that we review independently of the circuit court. State v. Schmitt, 145 Wis. 2d 724, 729-30, 429 N.W.2d 518 (Ct. App. 1988).

DISCUSSION

¶ 6. James argues that Barbara waived her right to appeal because she failed to comply with Wis. Stat. § 801.58(2), which provides for chief judge review of a denial of a request for substitution of judge. Barbara contends that review by the chief judge is not mandatory because the statute states that a denial of a request for substitution "may" be reviewed by the chief judge.

¶ 7. Wisconsin Stat. § 801.58(1) allows any party in a civil action to substitute the assigned judge. As initially relevant, the statute provides:

Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters.... If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment. ...

When Barbara received notice that Judge Warpinski had been assigned to the case, her attorney filed a written request for a substitution of a new judge with the clerk of court. Her request was timely and made before any hearings were held. Thus it is undisputed that, to this extent, the request was proper.

¶ 8. Wisconsin Stat. § 801.58(1) concludes, "Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge." Barbara did not comply with this provision.

¶ 9. Wisconsin Stat. § 801.58(2) deals with the procedural requirements for approving or denying a request for substitution of judge: "When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form." Here, Judge Warpinski determined that the request was timely but, because he did not receive a copy of the substitution request, it was not in proper form. He therefore denied the request. The statute then provides:

If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district... if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request.

Wis. Stat. § 801.58(2). Barbara did not avail herself of review by the chief judge.

¶ 10. Barbara contends that the chief judge review is discretionary because the statute says Judge Warpinski's determination "may" be reviewed. However, the full context reads that the determination may be reviewed "if the party who made the substitution request files a written request for review" within the time provided. In other words, the chief judge may only review the denial if Barbara timely requests a review. The chief judge may not review the denial if Barbara fails to request review. "May" is tied to the time limitation for requesting review. It is analogous to a statute of limitation. If Barbara wanted review of the denial of her request for substitution, she had to do so within the time allowed. By not doing so, she waived review.

¶ 11. Chief judge review promotes judicial economy and efficiency. State ex rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 504, 546 N.W.2d 460 (1996). When a substitution of judge request is denied, the review affords a quick redress. It also provides a way to correct error before further proceedings are conducted. Otherwise, both parties would be forced to expend time and resources participating in a court proceeding that would have to be repeated after reversal on appeal. The courts would similarly duplicate use of their resources. Finally, chief judge review will reduce the number of appeals. When the chief judge overrules an improper denial of a request for substitution, an appeal issue is eliminated.

¶ 12. The public policy of this state encourages economic and efficient use of judicial resources for the benefit of the parties and the public. Great Lakes Trucking Co. v. Black, 165 Wis. 2d 162, 171-72, 477 N.W.2d 65 (Ct. App. 1991). This is especially apparent in a case involving child custody and placement. The request for substitution was filed in July 2000. A review by the chief judge could potentially have resolved the issue in August. Instead, the issue is now before this court a year and a half later. This kind of delay is detrimental to the child as well as the parents.

¶ 13. Barbara's interpretation has another unacceptable consequence. It would allow her to test the judicial waters by proceeding with the circuit court action, awaiting the result, then appealing if she is dissatisfied. Or, even worse and as apparently happened here, she could settle her dispute, stipulate to an order, then change her mind and appeal.

¶ 14. We view the chief judge review procedure as analogous to exhaustion of administrative remedies. It is well settled that where a method of review is prescribed by statute and adequate relief may be obtained through the review procedure, the pursuit of administrative relief is a prerequisite to judicial review. Jackson County Iron Co. v. Musolf, 134 Wis. 2d 95, 102, 396 N.W.2d 323 (1986). The exhaustion doctrine promotes judicial efficiency by allowing conflicts to be resolved at the administrative level without resort to litigation.

¶ 15. Here, Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge. That avenue must be pursued in order to preserve the issue on appeal. If Barbara wanted to appeal the denial of her request for substitution, she was required to seek review by the chief judge. Since she did not, she has waived her right to appeal.

By the Court. — Order affirmed.

       Because our resolution of this issue is dispositive of the appeal, we need not address the other arguments. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).


author: FINE, J.

text:
    Milwaukee Police Association, Rod Gustafson and Javier Cornejo, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent.

    Court of Appeals

      No. 01-1057.

      Submitted on briefs December 4, 2001.

    Decided January 8, 2002.

    2002 WI App 43
    (Also reported in 641 N.W.2d 709.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William R. Rettko of Rettko Law Offices, S.C., Brookfield.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Thomas J. Beamish, and Stuart S. Muka-mal, assistant city attorneys, Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 3-19-02.

   FINE, J.

¶ 1. Milwaukee police officers Rod Gustafson and Javier Cornejo, and their union, the Milwaukee Police Association, appeal from a determination by the trial court not to compel the City of Milwaukee to arbitrate grievances filed by Gustafson and Cornejo. We reverse.

I.

¶ 2. The grievances filed by Gustafson and Cornejo alleged that they were transferred from the police department's Tactical Enforcement Unit as retaliation for, in essence, stepping on the administrative toes of then Deputy Inspector (now Chief of Police) Arthur Jones, and for complaining about Jones's alleged misconduct in connection with Jones's alleged attempt to interfere with the officers' investigation of suspected criminal activity. The grievances claimed that the officers were investigating a report that a member of the Vice Lords street gang had, among other things, "pointed a handgun at 7 citizens and fired 10 shots at a juvenile." The grievances charged that: "Just prior to an actual arrest, Deputy Inspector Arthur Jones ordered our investigation to cease." As a consequence of Jones's order and subsequent actions by Jones that are not fully explained in the record, the grievances asserted that "7 police officers alleged misconduct perpetrated by [Deputy Inspector] Jones resulting in [Gustafson and Cornejo] being transferred." The grievances contended that the transfers violated "Article 7 and Article 55" of the collective bargaining agreement between the Police Association and the City, as well as what the grievances described as "the 'Chiefs Advisory Transfer Committee' Section 5 memorandum."

¶ 3. The officers also filed a federal-court action against Jones and then police chief, Philip Arreola, that alleged that Jones and Arreola violated the officers' free-speech rights under the First Amendment to the United States Constitution. A jury agreed with the officers' contentions and found that the officers' exercise of their free-speech rights "was the substantial or motivating factor in the decision to transfer [Gustafson and Cornejo] from the Tactical Enforcement Unit and [Arreola's and Jones's] decision not to reassign [Gustafson and Cornejo] to the Tactical Enforcement Unit." The jury also found that Arreola and Jones acted in a "willful, wanton, or malicious" manner. Judgment was entered against both Jones and Arreola awarding each of the officers $10,000 in compensatory damages and $180,000 in punitive damages. The case is currently on appeal before the United States Court of Appeals for the Seventh Circuit.

¶ 4. Although Gustafson and Cornejo filed the grievances in 1993, they and the City agreed to hold them open pending resolution of the federal-court action. Pursuant to an agreement between the City and the officers, a hearing before an arbitrator on the officers' grievances was held in May of 2000. After some discussion and argument before the arbitrator, the City refused to arbitrate. The officers then brought this action. The trial court ruled that the grievances "were not procedurally arbitrable."

II.

¶ 5. Unless the agreement to arbitrate specifically vests in the arbitrator the "final and binding" determination as to whether a particular dispute is subject to arbitration, that determination is made by the courts. Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27, 39-42, 586 N.W.2d 41, 47 (Ct. App. 1998). It does not appear from the appellate record that the collective bargaining agreement here gives to the arbitrator the "final and binding" decision as to whether a dispute is subject to arbitration. The trial court found that the alleged retaliatory transfer was subject to arbitration under the collective bargaining agreement, and the City does not dispute this determination on this appeal. The trial court held, however, that the grievances filed by the officers did not comply with the collective bargaining agreement because they did not, as required by the agreement, "set forth the provision of the Agreement and/or the rule or regulation of the Chief of Police under which the grievance was filed." Whether a dispute between an employer and an employee under a collective bargaining agreement is subject to that agreement's grievance/arbitration provisions is a question of law that we review de novo. Id., 222 Wis. 2d at 37, 586 N.W.2d at 45.

¶ 6. As noted, the grievances and the federal-court lawsuit filed by officers Gustafson and Cornejo alleged that they were transferred from the Tactical Enforcement Unit in retaliation for their complaints about what they believed was Jones's unwarranted interference with their law-enforcement responsibilities. The grievances cited Article 7 of the collective bargaining agreement as among the provisions the officers claimed were violated by the transfer. Article 7 provides, as material here, that "[djifferences involving the interpretation, application or enforcement of the provisions of this Agreement or the application of a rule or regulation of the Milwaukee Police Department affecting wages, hours, or conditions of employment shall constitute a grievance under the provisions set forth below." The police department denied the grievances without first inquiring whether the allegations were true or false, and relied on the so-called management-rights clause of the collective bargaining agreement:

Grievance denied; no contract violation. The assignment and transfer of [the] Department members is a management right expressly reserved to the Chief of Police under Article 5, Paragraph 6 of the labor contract. The grievant has no right to a specific assignment in the Department, nor does he have a right to remain in a particular assignment indefinitely or for a specific period of time.

Paragraph 6 of Article 5 provides: "The City shall have the right to transfer employees within the Police Department in a manner most advantageous to the City." Paragraph 1 of Article 5 vests in the chief of police and the Board of Fire and Police Commissioners the right "to operate and manage their affairs in all respects in accordance with the laws of Wisconsin, ordinances of the City, Constitution of the United States and Section 111.70 of the Wisconsin Statutes."

¶ 7. The crux of the City's decision to not arbitrate the grievances filed by Gustafson and Cornejo, and of the trial court's ruling upholding that decision, is that counsel for the officers indicated at the hearing before the arbitrator that Gustafson and Cornejo were relying on the management-rights clause in Article 5, paragraph 1, which subjected the exercise of police-management discretion to the United States Constitution. This is how the officers' lawyer expressed it:

It's the grievants' position that they were transferred in retaliation of their First Amendment free speech rights by then Chief Arreola in conjunction with then Deputy Inspector Arthur Jones. And that through the course of many years that have followed that transfer, which took place in November 1993, that the retaliation has continued thereafter.

When asked by the arbitrator whether he was abandoning the contention in the officers' grievances that the alleged retaliatory transfer "constitutes discipline" in violation of Article 7, the officers' lawyer responded: "Your Honor, that's exactly where we are going. We are saying that what's happened here is in violation of Article 5, management rights, sub one." He further explained that retaliatory transfer in violation of the officers' free-speech rights under the United States Constitution violated "the implied covenant of good faith and fair dealing that runs with this collective bargaining agreement and it is an out and out breach of the contract in and of itself."

¶ 8. The trial court held that in light of the officers' reliance at the arbitration hearing on Article 5, paragraph 1 they did not comply with the requirement in the collective bargaining agreement that a grievance "set forth the provision of the Agreement and/or the rule or regulation of the Chief of Police under which the grievance was filed." This is how the trial court expressed it in its oral decision:

Plaintiffs argue that their citation [to] Article 7 is sufficient to place the City on notice because it informed the City that they were seeking the application and enforcement of a provision in the collective bargaining agreement, specifically in this case Article 5(1). However, since any grievance by definition is seeking the application and enforcement of a provision in the collective bargaining agreement, a general citation of Article 7,1 find is an adequate [should be "inadequate"] notice of what provision in the collective bargaining agreement is in issue.

In its brief before us, the City is a bit more colorful in its contention that the grievances were inadequate:

The Grievants1 last-minute reconfiguration and reincarnation of their Grievances as a Constitutional challenge to the Chief of Police's exercise of his management rights in effectuating the challenged transfers/reassignments, relying upon Article 5 § 1 of the [collective bargaining agreement], was unforeseeable, unanticipated, sprung on the City without warning, and was explicitly intended to 'blindside' the City and impair its ability to adequately prepare for and defend its position during the course of the arbitration proceedings.

The officers contend that under "notice pleading" concepts, their grievances were sufficient to commence the arbitration process. We agree.

III.

¶ 9. How specific a grievance needs to be to permit arbitration of that grievance is a matter of first impression in Wisconsin, and the law elsewhere is sparse. We start with the universal proposition, however, that parties to a collective bargaining agreement are bound by the terms of that agreement, Kimberly Area Sch. Dist., 222 Wis. 2d at 39, 586 N.W.2d at 46 ("a party is not required to submit any dispute to arbitration unless it has agreed to do so"), unless, of course, the terms violate the law, Mullen v. Coolong, 132 Wis. 2d 440, 454, 393 N.W.2d 110, 116 (Ct. App. 1986) ("A contractual provision voluntarily made between competent parties is valid and enforceable unless it violates a statute, rule of law, or public policy."), overruled on other grounds by Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 600, 405 N.W.2d 327, 334-335 (1987).

¶ 10. In deciding whether to direct parties to an arbitration agreement to submit their dispute to arbitration, a court must consider the following general principle:

"An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."

Milwaukee Police Ass'n v. City of Milwaukee, 92 Wis. 2d 145, 152, 285 N.W.2d 119, 122 (1979) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583 (1960)). Here, the parties to the collective bargaining agreement agreed to submit arbi-trable disputes to arbitration so long as the grievance triggering the arbitration process "set forth the provision of the Agreement and/or the rule or regulation of the Chief of Police under which the grievance was filed." The issue here is whether this prerequisite was met.

¶ 11. The principle enunciated in Milwaukee Police Ass'n, that courts should order arbitration unless "it may be said with positive assurance" that the arbitration agreement does not permit the order, 92 Wis. 2d at 152, 285 N.W.2d at 122, is consistent with the following observation in Ohio Council 8 v. Central State University, 474 N.E.2d 647, 651 (Ohio Ct. App. 1984), which we adopt:

In view of the purpose and use of these allegations in creating issues for resolution in arbitration, through non-judicial channels by laymen, we are reluctant to adopt a test more strict than the liberalized notice pleading in the courts. If anything, the rule should be more liberal in determining the subject or issue submitted to an arbitrator.

Although Milwaukee Police Ass'n decided whether an issue was subject to arbitration, and Ohio Council 8 concerned the scope of issues presented to an arbitrator for decision, we believe that the underlying policy favoring arbitrability also applies to whether a grievant has crossed all the requisite Ts and dotted all the applicable Is.

¶ 12. The grievance in this case indicated on its face that it was filed, inter alia, under Article 7, which, as we have seen, encompasses "[d]ifferences involving the interpretation, application or enforcement" of the collective bargaining agreement "or the application of a rule or regulation" of the police department "affecting .. . conditions of employment." This provision thus encompasses the complaint alleged in the officers' grievances — their contention that their "working conditions" were adversely affected in retaliation for their exercise of their free-speech rights under the United States Constitution. As noted, the police department denied the grievances as a matter of contract interpretation, without inquiry into the truth or falsity of the officers' allegations, based on its view that the rights granted to department management by Article 5 of the collective bargaining agreement permitted Arreola and Jones to do what Gustafson and Cornejo claim they did: transfer them from one duty assignment to another in retaliation for their speaking out about what they contended was misconduct by Jones.

¶ 13. Article 5, paragraph 1 of the collective bargaining agreement is a "management rights" provision, and is so headed; it is not an "employee rights" provision and gives officers in the Milwaukee Police Department no rights beyond what they would have if the clause did not exist: no governmental entity or officer may lawfully act contrary to the United States Constitution. Thus, although the officers' attorney indicated at the truncated hearing before the arbitrator that he was relying on the recognition in Article 5, paragraph 1 that the management rights of the police department were subject to the United States Constitution, the grievances were not "filed" under Article 5; they were filed under Article 7, and this complies with the requirement in Article 7, paragraph 4 that the grievances "set forth the provision of the Agreement and/or the rule or regulation of the Chief of Police under which the grievance was filed." That the officers' attorneys sharpened the focus of their legal theory does not deprive the arbitrator of jurisdiction over their grievances. See Board of Educ. v. Sussex County Vo-Tech Teachers' Ass'n, 1995 WL 1799135, at *3 (Del. Ch. 1995) (recognizing that "arguments" on which a grievance is based "may be modified" in the course of the proceedings). Significantly, the collective bargaining agreement does not require that grievants specify either a provision of the agreement or a department rule or regulation that they contend was violated; by the clear language of the collective bargaining agreement, a grievance passes specificity muster if it identifies the provision under which it is filed. See Cernohorsky v. Northern Liquid Gas Co., 268 Wis. 586, 593, 68 N.W.2d 429, 433 (1955) (unambiguous contractual language must be enforced as it is written "even though the parties may have placed a different construction on it"). The grievances filed by Gustafson and Cornejo did precisely that, and the City had fair notice of the issues to be arbitrated.

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

       The "the" that we have placed in brackets appears only in the denial of Gustafson's grievance.

       Gustafson and Cornejo do not contend that either Article 55 of the collective bargaining agreement or "the 'Chiefs Advisory Transfer Committee' Section 5 memorandum," both referenced in their grievances, apply. Although we are not bound by a party's argument, Watts v. Watts, 152 Wis. 2d 370, 384, 448 N.W.2d 292, 298 (Ct. App. 1989), in light of our resolution of this appeal on other grounds we do not need to decide whether they apply, see Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed).

       In light of the forceful allegations in the officers' grievances and the federal-court lawsuit, and the jury's verdict in that lawsuit, which the United States magistrate judge determined in his post-verdict decision was supported by "ample evidence in the record," the City's colorful claim of sandbagging and unfair surprise is hyperbole unworthy of government lawyers representing a governmental entity. "An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.'" Brady v. Maryland, 373 U.S. 83, 87 (1963). We see no reason why the same maxim does not apply to state and municipal government as well. Of course, government attorneys are not neutrals; they are advocates. See id., 373 U.S. at 87 n.2. We believe, though, that the following observation of former Solicitor General Simon Sobeloff, and later a judge on the United States Court of Appeals for the Fourth Circuit, applies equally as well to government lawyers at all levels:
      The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.

        Ibid.


author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Carlos R. Delgado, Defendant-Appellants.

    Court of Appeals

      No. 01-0347-CR.

      Oral argument December 13, 2001.

    Decided January 15, 2002.

    2002 WI App 38
    (Also reported in 641 N.W.2d 490.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender of Milwaukee. There was oral argument by Diana M. Felsmann.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general. There was oral argument by Sally L. Wellman.

    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 5-21-02.

   WEDEMEYER, PJ.

¶ 1. Carlos R. Delgado appeals from a judgment entered after a jury found him guilty of two counts of first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (1999-2000). He also appeals from an order denying his postconviction motion. Delgado argues that his conviction should be reversed because an expert witness violated the Haseltine rule by vouching for the credibility of the victims. He also claims that the State made improper use of the expert's testimony regarding the credibility of the victims during closing argument. Because we resolve each issue in favor of upholding the judgment and order, we affirm.

I. BACKGROUND

¶ 2. The sexual assaults at issue here occurred between late 1989 and early 1990. Delgado was charged with six counts of first-degree sexual assault — three counts relating to eight-year-old Grisel D., and three counts relating to seven-year-old Gladys D. The case was originally tried to a jury in January 1993. The jury found Delgado guilty on all counts. However, the conviction was overturned on appeal and remanded for a hearing on juror bias. Following the hearing, the trial court found that there was no juror bias. Delgado appealed again, and the court of appeals affirmed. However, the Wisconsin Supreme Court reversed on the juror bias issue.

¶ 3. A new trial occurred in September and October 1999. During the trial, the State called expert witness, Teresa Ortiz, a psychotherapist. Delgado entered a continuing objection to her testimony, asserting that Ortiz should be precluded from opining about the victims' behavior in relation to other sexual assault child victims. The State argued that expert testimony relating to behavior displayed by sexual assault victims was proper, and that Ortiz would not be asked about her opinion as to whether or not she actually believed the victims' statements. The trial court, relying on State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988) and State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988), ruled that Ortiz would be permitted to testify with regard to common behavioral patterns among the victims here and other similarly situated victims. The court cautioned that Ortiz would not be permitted to testify as to the credibility of the victims, or Ortiz's belief that the victims were telling the truth.

¶ 4. The jury found Delgado guilty on all counts. He filed a postconviction motion alleging the same issues he raises on appeal. His motion was denied. He now appeals.

II. DISCUSSION

A. Ortiz's Testimony.

¶ 5. The first issue in this case is whether Ortiz's testimony crossed the line and violated the Haseltine rule. This court is divided as to whether or not the Haseltine line was crossed. However, this court agrees that Delgado's failure to object at the specific times he believes the Haseltine rule was violated constitutes a waiver of his right to raise this issue on appeal.

¶ 6. Before we address waiver, we review the principles of law governing this area. In Haseltine, this court concluded that expert testimony as to whether or not another witness was telling the truth improperly abdicated the fact-finding role of the jury. Id., 120 Wis. 2d at 96. Since the Haseltine decision, other cases have clarified exactly what an expert may and may not do when called on to assist the jury in understanding the evidence or an issue of consequence. See also Wis. Stat. § 907.02.

¶ 7. In Robinson, our supreme court determined that an expert witness may testify as to his or her personal observations of the victim and other sexual assault victims. Id., 146 Wis. 2d at 333. In Jensen, our supreme court went a'step further and offered additional guidance in determining whether an expert's opinion testimony in child sexual assault cases was properly admitted. The supreme court held that an expert witness's opinion testimony that the victim's behavior was consistent with that of children who were victims of sexual abuse could be admitted, id., 147 Wis. 2d at 249-50, as long as "the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 257. It further provided that "a complainant's behavior after an assault may be admitted as circumstantial evidence that an assault occurred." Id. The supreme court clarified that a prosecutor is free to use post-assault behavior "as an evidentiary link in the prosecutor's case." Id. at 258. The facts in Jensen supported the admission of the opinion testimony: (1) because the expert's testimony was offered to explain the context in which the victim reported the assault; and (2) because the testimony was relevant to rebut the defense's theory that the victim fabricated the sexual assault charges. Id. at 250.

¶ 8. After reviewing these cases, we can discern some general rules: (1) an expert witness can offer opinion testimony only if it complies with Wis. Stat. § 907.02; (2) the testimony can include opinions regarding symptomatology common to child sexual assault victims; (3) the testimony can include a description of the symptoms exhibited by the victims; and (4) the testimony can include the expert's opinion as to whether or not the victims' behavior is consistent with behavior of sexual assault victims. Our supreme court has concluded that such testimony is not tantamount to vouching for the credibility of the victims and does not establish that an assault actually occurred.

¶ 9. We can also conclude from this case law assessment what an expert witness may not do: (1) he or she may not testify that the victim is "being totally truthful," State v. Romero, 147 Wis. 2d 264, 277, 432 N.W.2d 899 (1988) (citation omitted); (2) he or she may not testify that there is "no doubt whatsoever" that the accuser was a victim of moral turpitude, Haseltine, 120 Wis. 2d at 96 (citation omitted); and (3) if he or she is hired to determine whether or not an assault has occurred, the testimony may be limited.

¶ 10. On appeal, Delgado does not assert that the trial court erred in permitting Ortiz to testify or that the trial court erred in rejecting the request to totally exclude all of Ortiz's testimony. Rather, Delgado concedes that the majority of Ortiz's testimony was unobjectionable. He complains specifically about the following passages:

[MS. ORTIZ:]
A As I mentioned before, they had not shared any of that information, any of those details with.. .. They were not going to do that.... So they had taken on a lot of the burden onto themselves. And from the report that I had from the girls, it was because they observed [another person] being physically abused and emotionally abused, and they didn't want to add to that.
A I think they felt fairly comfortable with me. . . . And they were willing to talk.... I told them that I needed to know what was happening and why they were there.... I think [the older girl] really took on a burden of... taking care of [the younger girl],...
Q And again was that [opening up] kind of a gradual process?
A It was a gradual process. And you have to remember that when children are — or adults have been sexually abused, it is such a horrifying thing that there is a part of them that is in denial. So, and this was a ... secret. [Both girls] knew that this was happening at some level, but they had never really shared the details with one another, and so this ... secret was shared in my office. It took time... it didn't happen all at once.... It wasn't in fact until about a year and 3 months later that [the younger girl] finally shared a big piece of information with me.
A [The younger girl] is the one who really shared quite a bit. And I really stayed away from pushing the girls giving me information. One of the reasons was because the girls were preparing to give testimony and there were several dates that were given for the girls to give testimony. And they prepared psychologically and then they would be disappointed because they couldn't because it was postponed. So it was like they were preparing to open up and then they would have to close and open up and close and open up and close. . .. [W]e weren't only dealing with the trauma of the sexual abuse, of the reported sexual abuse, but we were dealing with the trauma of the postponements.

(Emphasis added.) No objections were made by defense counsel during these allegedly objectionable statements. At oral argument before this court, defense counsel contended that no objections were required because of the continuing objection entered to Ortiz's entire testimony. We disagree.

¶ 11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz's testimony. This area of the law — what a therapist can and cannot testify to — is complicated. As a result, we hold that when an expert witness is permitted to testify in a sexual assault case as to common characteristics of sexual assault victims, and to the consistency of those characteristics with those of the victims in the case at trial, and when the expert presents extensive testimony on those and related subjects, a standing objection is insufficient to preserve challenges to Haseltine violations.

¶ 12. We have long held that a specific, contemporaneous objection is required to preserve error. State v. Conley, 141 Wis. 2d 384, 403, 416 N.W.2d 69 (Ct. App. 1987). It is not the duty of the trial court to sua sponte strike testimony that is inadmissible. State v. Mayer, 220 Wis. 2d 419, 429-30, 583 N.W.2d 430 (Ct. App. 1998).

¶ 13. Here, when ruling on Delgado's motion to preclude Ortiz's testimony, the trial court specifically found that the law permitted Ortiz to testify with regard to common behavioral patterns exhibited by sexual assault victims in general, and whether the victims here exhibited behavioral patterns consistent with those of sexual assault victims. The trial court ruled that Ortiz would not be permitted to testify as to the credibility of the victims, or Ortiz's belief that the victims were telling the truth. The trial court's ruling put Delgado's counsel on notice as to the specific areas that constitute objectionable testimony. The standing objection preserved the issue of whether Ortiz should be permitted to testify at all and whether her testimony would be helpful to the jury. Defense counsel did not make any specific Haseltine objections, which are now raised on appeal. Accordingly, we must conclude that Delgado waived his right to have this issue addressed on appeal.

B. Closing Argument.

¶ 14. Next, Delgado argues that the prosecutor exploited Ortiz's testimony when presenting closing argument to the jury. Specifically, he complains about the following passages:

[Ms. Ortiz] said they are still bearing the burden even today of [the defendant's sexual abuse. . ..
She said children don't want to remember things like this....
All of these criteria which you see in children who have been sexually abused testified to by ... an expert who has been dealing in this field for years and years and years, were exhibited by these children.
Andyei the defense would have us believe that Mrs. Ortiz was just she is just fooled. She has been hoodwinked by these children, and that her opinion with respect to their trauma that they have suffered, the diagnosis of post-traumatic stress syndrome that is apparent in these girls from the trauma they suffered at the hands of [Mr. Delgado] is all just a charade.
The defense is asking you to return a verdict that says he is the victim, that these girls have been pulling off a charade for 10 years. For 10 years they have visited an expert, an expert who has dealt with thousands of victims, child victims of sexual assault and somehow these girls have pulled the wool over her eyes.

(Emphasis added.)

¶ 15. At oral argument to this court, the State argued that the prosecutor was simply asking the jury to find Ortiz's testimony credible, and was not trying to suggest that Ortiz was vouching for the credibility of the victims. The italicized portions of the prosecutor's closing argument, however, could imply that Ortiz did believe that the girls were telling the truth. Thus, in a backhanded way, the prosecutor's argument does suggest that Ortiz was vouching for the girls' credibility; that Ortiz was telling the jury that the assaults occurred. Nevertheless, we cannot conclude that these isolated comments during closing argument prejudiced Delgado.

¶ 16. The jury was instructed that it was the "sole judge [] of the credibility of the witnesses and of the weight and credit to be given to their testimony." The jury was instructed that closing arguments of the attorneys, and their conclusions and opinions were not evidence. The jury was given a special instruction addressing Ortiz's testimony specifically:

[T]he law is that [Ortiz] can only testify as to her observations based on consistency between people who may have been sexual assault victims. She cannot testify as a matter of law that these particular people were in fact sexual assault victims. So any intimation as to why she did not so testify is appropriate for her not to do so, and I ask you to disregard any suggestions, inferences or direct statement regarding her non-opinion as to that matter.

¶ 17. Juries Are presumed to follow the court's instructions. State v. Smith, 170 Wis. 2d 701, 719, 490 N.W.2d 40 (Ct. App. 1992). It is also interesting to note that the specific instruction came in response to defense counsel's argument that Ortiz did not testify that the girls were sexually assaulted. During the specific instruction, the jury was told by the trial court that Ortiz did not and could not testify that the girls were sexually assaulted.

¶ 18. We conclude that the prosecutor's statements made during closing argument were harmless error. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).

By the Court. — Judgment and order affirmed.

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

        State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).

       Delgado also argued that the waiver argument was baseless under State v. Tutlewski, 231 Wis. 2d 379, 384-85, 605 N.W.2d 561 (Ct. App. 1999). Tutlewski, however, does not control here, as the defendant's claim in Tutlewski was based on the same objection made on appeal as was made in the trial court. Id. Delgado focuses his appeal argument on limited portions of Ortiz's testimony that he claims violate Haseltine. However, at trial, he argued that Ortiz's testimony should be excluded in total because it would not assist the jury.