author: HOOVER, PJ.

text:
    Citizens' Utility Board (CUB), James Hannemann, David Hannemann, Bill and Fern Rowney, Sandy Lyon and Russel Decker, Petitioners, Save Our Unique Lands (SOUL) and Wisconsin's Environmental Decade (WED), Appellants, Thomas and Margaret Kreager, David and Lisa Graves, Raymond and Helena Jiskra, Marie Krenzelok, Bert Robertson, Marshall Robinson, Edward and Tamara Nichols, Roger and Maria Svoma, Gerald and Sally Bargender, Donald and Gladys Bauman, Bill Bonsall, Lowell Borchardt, Dennis and Sandy Cihlar, Allan and Peggy Cihlar, Bill and Nancy Dittman, Jeff and Tammy Fischer, Phil Hackel, Chester and Irene Hoffman, Henry and Marsha Imhoff, James Knauf, Neal Koepke, Jerry and Julie Kurth, Steve Soczka, Francis Steiber, Joel and Marcia Stencil, Ernie and Evelyn Walters, Lawrence and Joan Wirkus, Dale Pilgrim, Lawrence Svanda, June Svanda, Fred Svanda, Michael and Lynette Weis, Franke and Connie Wirkus, Timothy and Zoe Miller, Paul Meyer, Margaret and Claude Buchberger, Rick Magyar and Cynthia Haag, Intervenors-Appellants, v. Public Service Commission of Wisconsin and Wisconsin Public Service Corporation, Respondents-Respondents, American Transmission Company LLC and ATC Management Inc. (collectively ATC), Municipal Electric Utilities of Wisconsin, Wisconsin Federation of Cooperatives, Dairyland Power Cooperative, Minnesota Power, Wisconsin Paper Council, and Wisconsin Merchants Federation, Respondents.
    Court of Appeals

      No. 02-1834.

      Submitted on briefs May 12, 2003.—

      Decided September 23, 2003.

    2003 WI App 206
    (Also reported in 671 N.W.2d 11.)

      On behalf of the appellants, the cause was submitted on the briefs of Pamela R. McGillivray, Glenn M. Stoddard and Edward R. Garvey and Garvey & Stod-dard, S.C.; and Frank Jablonski and Porter, Jablonski & Associates S.C. of Madison.

      On behalf of the respondents-respondents, the cause was submitted on the brief of Robert J. Mussal-lem, of Public Service Commission of Wisconsin of Madison.
    On behalf of respondents, there was a brief by Trevor J. Will, Bartholomew F. Reuter and Foley & Lardner of Milwaukee for Wisconsin Public Service Commission; Deborah A. Amberg, Steven W. Tyacke of Duluth, MN, for Minnesota Power Company; and David J. Hanson, Lauren L. Azar and Michael, Best & Friedrich LLP of Madison for American Transmission Company LLC and ATC Management Inc.
    On behalf of respondents, there was a brief by Anita T Gallucci and Boardman, Suhr, Curry & Field, LLP of Madison for Municipal Electric Utilities of Wisconsin; Warren J. Day of Madison for Wisconsin Federation of Cooperatives; and Rebecca A. Schmidt of Madison for Wisconsin Merchants Federation.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Save Our Unique Lands (SOUL) and Wisconsin's Environmental Decade (WED) were parties before the Public Service Commission of Wisconsin (PSC), an administrative agency, along with Citizens' Utility Board (CUB) when the PSC approved the placement of the Arrowhead-Weston power line. CUB, SOUL, and WED each petitioned for judicial review of the PSC's decision. Wisconsin Public Service Corporation (WPS) moved to dismiss SOUL's and WED's petitions for improper service. SOUL and WED then filed a conditional motion for intervention in CUB's case, contingent upon the court granting WPS's motion. The court dismissed the two parties' petitions for judicial review and then denied the motion for intervention, calling it an attempt to circumvent the statutory requirements and deeming it untimely. We agree with the trial court's conclusion and therefore affirm the order.

Background

¶ 2. The Arrowhead-Weston power line is a proposed 345 kilovolt high voltage transmission line that would supply electricity to parts of Wisconsin. It would originate in Duluth, Minnesota, and crosses a large part of Wisconsin to terminate near Weston in Marathon County. WPS would own the line. CUB, SOUL, and WED objected to the line before the PSC, citing various environmental and aesthetic concerns. Nonetheless, the PSC approved placement of the line on October 30, 2001.

¶ 3. On November 29, 2001, the last day to file petitions for judicial review, CUB, SOUL, and WED each filed their petitions for review. Each petition was assigned a different case number and, although they were assigned to the same judge for coordination, they were never consolidated.

¶ 4. On January 9, 2002, WPS filed a motion to dismiss SOUL's and WED's petitions for improper service. On January 11, the trial court notified CUB, SOUL, and WED that it would hear any intervention petitions on March 25. On January 17, the trial court sent notice that it would also hear WPS's motion on March 25.

¶ 5. On March 22, SOUL and WED filed a motion to intervene, contingent upon the trial court's dismissal of their petitions for review and for the purpose of resurrecting the seventeen issues in their petitions for review. Sixteen of those issues had not been raised by CUB. WPS objected.

¶ 6. At the March 25 hearing, the trial court granted WPS's motion to dismiss for lack of subject matter jurisdiction. It did not, however, discuss the petitions for intervention but instead adjourned the hearing to accommodate a briefing schedule. On April 8, SOUL and WED filed an amended motion to intervene. On June 5, the court denied SOUL and WED's motion for intervention. It concluded that they failed to comply with the procedural requirements for filing their own petitions for review and the time for joining CUB's petition had passed, resulting in a forfeiture of any right to intervene. The court also concluded that in any event, the petition for intervention was untimely under Wis. Stat. § 227.53(l)(d). SOUL and WED appeal. We affirm the order.

Discussion

¶ 7. We are not asked to review the administrative agency decision underlying this case. Instead, the question is whether the trial court properly denied SOUL and WED's petition for intervention. Whether to allow intervention is a discretionary decision for the trial court. Town of Delevan v. City of Delevan, 160 Wis. 2d 403, 415, 466 N.W.2d 227 (Ct. App. 1991). Normally, a trial court considers whether the potential intervenor has standing and whether that intervenor's interests are already adequately represented by another party. Id. However, SOUL and WED allege the trial court misinterpreted the statute in reaching its decision. A discretionary decision based on an error of law is an erroneous exercise of that discretion. State v. Gesch, 167 Wis. 2d 660, 666, 482 N.W.2d 99 (1992).

¶ 8. Construction of a statute is a question of law that we review de novo. State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991). When we interpret a statute, our purpose is to ascertain legislative intent and give it effect. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). The primary source for the statute's construction is the statutory language itself. Dean, 163 Wis. 2d at 510. If the language is unambiguous, we arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. Id. Moreover, although a word or a phrase may seem ambiguous standing alone, the context of the word or phrase may eliminate the ambiguity. State v. Johnson, 171 Wis. 2d 175, 181, 491 N.W.2d 110 (Ct. App. 1992). Under noscitur a sociis, ordinarily the coupling of words denotes an intention that they be understood in the same general sense. Id. That is, a word "is known from its associates." Id. (citation omitted).

¶ 9. Under Wis. Stat. § 227.53(1), any person aggrieved by an administrative agency decision "shall be entitled to judicial review." The petition must be filed and served within thirty days of service of the agency's decision. Wis. Stat. § 227.53(l)(a)2. The petition must be served on all parties to the agency decision, especially when the agency decision specifically lists parties "for purposes of review"; § 227.53(l)(c) prohibits the court from dismissing a proceeding for review solely because of lack of service "unless the petitioner fails to serve a person listed as a party for purposes of review .. .These parties to the agency proceedings have the right to participate in the judicial review proceedings. Wis. Stat. § 227.53(l)(d). Participation of other parties is a discretionary decision for the trial court. Id. If a party served with a petition for review wishes to exercise its right to participate in the review, it must serve a notice of appearance stating its position on each allegation in the petition for review as well as an opinion as to whether the agency's decision should affirmed, modified, or vacated. Wis. Stat. § 227.53.

¶ 10. SOUL and WED thus had two statutory options for obtaining judicial review of the PSC's decision approving the Arrowhead-Weston line. First, they had the right to file a petition for review, which each did. However, they failed to comply with the service requirements, depriving the trial court of jurisdiction. Second, SOUL and WED could have filed a notice of appearance in CUB's petition for review. The record is not clear why they did not, although we suspect two reasons: SOUL and WED likely expected to proceed on their own petitions, and CUB's petition raised only-one issue compared to SOUL and WED's seventeen.

¶ 11. The trial court concluded first that SOUL and WED were attempting to circumvent their own ineffective petitions for review. SOUL and WED, however, contend they Eire "Any person petitioning the court to intervene" under Wis. Stat. § 227.53(l)(d) and their petition should have been granted. We disagree.

¶ 12. Wisconsin Stat. § 227.53(1)(d) starts by granting "the agency and all parties to the proceeding before it" the right to participate in judicial review proceedings filed by other individuals. The next sentence, however, gives the court discretion to allow "other interested persons to intervene" in the judicial review. Because the prior sentence gave parties to the agency proceeding the right to participate in judicial review proceedings, the parties are not part of the group referred to as "other interested persons" and therefore are not entitled to petition for permissive intervention.

¶ 13. The next sentence states that "Any person petitioning the court to intervene" shall follow a certain procedure for service of the intervention petition. SOUL and WED contended they are "any person." However, the only people allowed to petition for intervention are the "other interested persons." SOUL and WED are not other interested persons with the right to seek intervention. Instead, they are parties who participated in the agency proceeding. Their ability to participate in judicial review proceedings originates from different authority from the intervenors' ability to participate. SOUL and WED are not "any person." They are parties to the administrative proceedings who, through their own actions, invalidated their own participation in the judicial review.

¶ 14. We also acknowledge the trial court's concern with SOUL and WED's attempt to circumvent their procedural errors. The court noted Weina v. Atlantic Mut. Ins. Co., 177 Wis. 2d 341, 501 N.W.2d 465 (Ct. App. 1993), where the question was "whether a person who fails to file a timely notice of appeal may participate in the appeal through intervention or by the filing of a nonparty [amicus] brief." Id. at 347. We answered that question in the negative, concluding that the "jurisdictional time limit for the commencement of an appeal would be circumvented" if we granted the petition for intervention in the appeal or amicus status. Id. We wrote that the petitioners could not "be allowed to do indirectly what they cannot do directly." Id.

¶ 15. Similarly, a petition for judicial review of an administrative agency decision is the functional equivalent of an appeal. SOUL and WED failed to take the steps necessary to participate directly in the review, and now attempt to do so indirectly. The trial court concluded under Weina that such a result would be improper. We agree.

¶ 16. Even if we decided that the court could grant SOUL and WED intervenor status, the court correctly determined that their petition was time-barred. Wisconsin Stat. § 227.53(l)(d) states, "Any person petitioning the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the petition." (Emphasis added.) SOUL and WED make two arguments. First, they argue that "the hearing" in the statute refers to the hearing on the judicial review petition, not the intervention petition. Second, they argue that if the hearing means the intervention hearing, their petition was timely because although the original hearing was March 25, it was ultimately adjourned until June 5. Again, we disagree.

¶ 17. Persons wishing to intervene must petition the court. Wis. Stat. § 227.53(l)(d). The court should then hold a hearing on whether to grant intervention because intervention is permissive, not automatic. See id. ("The court may permit other interested persons to intervene."). Although technically the court could simply grant or deny the petition, such a situation would be unusual because it would not give any party an opportunity to present argument for or against intervention. The intervention hearing also must come before the judicial review proceeding or intervention would be moot. Moreover, there is no "hearing" on a petition for judicial review; filing the petition for review triggers the commencement of the action. See Gimenez v. State Med. Exam. Bd., 229 Wis. 2d 312, 317, 600 N.W.2d 28 (Ct. App. 1999). There is no hearing to decide whether to proceed. The hearing on a petition for judicial review is the judicial review itself.

¶ 18. Moreover, while SOUL and WED point out that elsewhere in Wis. Stat. § 227.53 "the petition" refers to the petition for judicial review, this particular paragraph is dedicated to intervention procedure. We deem this to mean that the default "petition" in the subsection is the intervention petition. The subsection specifically uses "judicial review" only when it is necessary to make a distinction: "Any person petitioning the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the petition." (Emphasis added.) "Judicial review" serves only to identify the additional parties; the only petition referred to in this subsection is the petition for intervention.

¶ 19. SOUL and WED alternatively contend their petition for intervention was timely. They served their petition on March 22, three days before the March 25 intervention hearing. However, they contend that the real hearing date was June 5 because the trial court adjourned the March 25 hearing. We disagree. The court adjourned the hearing for briefing, not to extend the timeline for filing intervention motions. The court was not required to allow briefing and could have proceeded to a decision March 25 if it had been so inclined, effectively eliminating SOUL and WED's argument. In any event, SOUL and "WED were notified on January 11 that the intervention hearing would be March 25, and by January 17 SOUL and "WED knew they faced possible dismissal of their petitions for review. Their March 22 petition for intervention was untimely.

¶ 20. Because SOUL and WED failed to avail themselves of their statutory right to participate in judicial review, they may not now attempt to join the review proceedings through intervention. Even if they were entitled to file for intervention, their motion was untimely. The trial court properly exercised its discretion by denying SOUL and WED's petition to intervene in CUB's judicial review proceeding.

By the Court. — Order affirmed.

       SOUL and WED are the only appellants that submitted a brief.

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

       The order also denied SOUL and WED's request to file amicus curiae briefs. Because SOUL and WED fail to address this part of the order in their briefs, we deem it abandoned. See Reiman Assocs. v. R/A Adver., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981).

       WISCONSIN Stat. § 227.53 states in relevant part:

        (1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review of the decision as provided in this chapter and subject to all of the following procedural requirements:
      (a) 1. Proceedings for review shall be instituted by serving a petition ... upon the agency or one of its officials, and filing the petition in the office of the clerk of the circuit court for the county where the judicial review proceedings are to be held....
      2. .. . [Petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties ....
      (c) A copy of the petition shall be served personally or by certified mail or, when service is timely admitted in writing, by first class mail, not later than 30 days after the institution of the proceeding, upon each party who appeared before the agency in the proceeding in which the decision sought to he reviewed was made or upon the party's attorney of record. A court may not dismiss the proceeding for review solely because of a failure to serve a copy of the petition upon a party or the party's attorney of record unless the petitioner fails to serve a person listed as a party for purposes of review in the agency's decision under s. 227.47 or the person's attorney of record.
      (d) ... [T]he agency and all parties to the proceeding before it, shall have the right to participate in the proceedings for review. The court may permit other interested persons to intervene. Any person petitioning the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the petition.
      (2) Every person served with the petition for review as provided in this section and who desires to participate in the proceedings for review thereby instituted shall serve upon the petitioner, within 20 days after service of the petition upon such person, a notice of appearance clearly stating the person's position with reference to each material allegation in the petition and to the affirmance, vacation or modification of the order or decision under review.

       Normally, a lack of service deprives a court of personal, not subject matter, jurisdiction. However, the trial court concluded that it was deprived of subject matter jurisdiction in case Nos. 01-CV-900 and 01-CV-902. These were the case numbers assigned to SOUL's and WED's petitions for review. Rather than appeal the trial court's decisions in those cases, SOUL and WED instead opted to attempt intervention in CUB's case, No. 01-CV-901. The propriety of the trial court's dismissal of Nos. 01-CV-900 and 01-CV-902 is not before us.

       In any event, it seems that parties following the appropriate procedure for filing their own request for review or appearance in another party's petition should not need to attempt intervention.

       SOUL and WED argue that because their petitions for review were still active until dismissed on March 25, they should not have been expected to file a motion to intervene five days before the March 25 hearing. This argument is unavailing, however, because following this logic, SOUL and WED would not have filed their March 22 motion.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    James M. Gibson, Plaintiff-Respondent, v. Overnite Transportation Company, Defendant-Appellant.

    Court of Appeals

      No. 02-3158.

      Submitted on briefs August 5, 2003.—

      Decided September 23, 2003.

    2003 WI App 210
    (Also reported in 671 N.W.2d 388.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig A. Kubiak of Godrey & Kahn, S.C., Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Carey J. Reed of Law Office of Carey J. Reed, Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review dismissed 1-29-04.

   PETERSON, J.

¶ 1. Overnite Transportation Company appeals a judgment for money damages based upon a jury verdict finding defamation based on negative comments a manager made about former employee James Gibson. Overnite was ordered to pay a total of $283,000 in compensatory and punitive damages. Over-nite argues: (1) The defamation action is preempted by the National Labor Relations Act; (2) Gibson did not prove the requisite malice to show Overnite abused its conditional privilege as an employer to make statements about a former employee; (3) the punitive damages are excessive; and (4) the trial court erred by not requiring the jury to find that the damages were caused by the defamation. We disagree with all four arguments and affirm the judgment and order.

BACKGROUND

¶ 2. Overnite is a nationwide trucking company. Gibson worked for Overnite out of the Kaukauna terminal, a nonunion facility. Gibson began working for Overnite in May 1999, first on the dock and eventually as a truck driver. In October 1999, the Teamsters went on strike and established a picket line at Overnite's Milwaukee terminal, a union facility. Due to the strike, the Milwaukee terminal was essentially shut down. Overnite therefore ran some of the Milwaukee freight through Kaukauna. Because Gibson had previously worked in Milwaukee and was familiar with the area, he was temporarily assigned to pick up freight at the Milwaukee facility. When he was there, Teamster supporters harassed him.

¶ 3. Gibson decided to resign from Overnite. Gibson told Tim Behling, the terminal manager in Kaukauna, that he had to quit immediately to help his ailing grandfather's company. In fact, Gibson went to work for another trucking company, USF Holland, the next day. Gibson testified at trial that he lied because he was afraid Behling would retaliate against him for quitting to avoid confrontations with the Teamsters in Milwaukee and for going to work for a union company.

¶ 4. Gibson started at USF Holland as a probationary employee. In January 2000, USF Holland hired Robert Arden and Associates to check Gibson's background. An Arden representative called Behling for an employment reference. The report Arden generated indicated that Behling made the following comments regarding Gibson: "He was way below average. He needed to improve his work ethic and attitude." "He was late most of [the] time and he missed anywhere from two to three days a week." "He had a real problem with authority." "He has a very negative attitude." "He's everybody[']s best friend - so he thinks. He did get along with some people, but most saw through him." "His paperwork was fair. It needed help like you wouldn't believe." Behling also indicated that Gibson's trustworthiness was "borderline," and that he would "never" rehire Gibson. Overnite was the only one of Gibson's former employers to give a negative report to Arden. Based on the report, USF Holland terminated Gibson's employment.

¶ 5. Gibson commenced this action against both Overnite and Behling, asserting blacklisting and common law defamation. Gibson later dismissed the blacklisting claim as well as claims against Behling. A jury trial was held. Gibson testified that he was embarrassed, humiliated and that his reputation was harmed by Behling's statements. He stated that people in the trucking industry were aware of the information in Arden's report. Gibson commented that, due to Behling's negative comments, he was unable to find another job for a year and a half after he left USF Holland. He also testified about the loss of income he suffered as a result.

¶ 6. The jury found that Behling's statements were defamatory and made with express, but not actual, malice. It awarded Gibson $33,000 in compensatory damages and $250,000 in punitive damages. Over-nite filed motions after the verdict arguing, among other things: (1) Gibson's claim was preempted by the National Labor Relations Act because Behling's statements were part of a "labor dispute;" (2) actual malice, not express malice, was required to overcome Overnité's conditional privilege as an employer; (3) the punitive damages were excessive; and (4) the jury should have been required to find that Behling's statement caused the damages to Gibson. The court rejected Overnite's motions and entered judgment on the jury's verdict. Overnite appeals.

DISCUSSION

A. National Labor Relations Act

¶ 7. Overnite first claims that Gibson's defamation action is preempted by the National Labor Relations Act. Overnite argues that even though Gibson characterized the claim as defamation, it actually amounts to blacklisting, which is arguably an unfair labor practice under § 8 of the Act. Because state law claims are preempted when they arguably are subject to § 8, Overnite maintains that the National Labor Relations Board has exclusive jurisdiction over the action.

¶ 8. However, Overnite did not argue during motions after the verdict that blacklisting was the basis of the preemption. Instead, it argued that the statements were made in the context of a labor dispute and the action should be preempted on that basis. Overnite noted that Gibson testified that he lied to Behling about his reason for leaving because Gibson believed Behling was anti-union. Gibson also stated he was afraid he would be punished for leaving Overnite to work for a union company. This, Overnite claimed, showed that Behling's statements were made in the context of a labor dispute. The trial court determined, however, that Behling's statements did not take place in the context of a labor dispute and therefore the claim was not preempted by the Act.

¶ 9. Generally, we will not consider on appeal arguments not made to the trial court. Hopper v. Madison, 79 Wis. 2d 120, 137, 256 N.W.2d 139 (1977). Although new arguments may be permitted on an issue that was properly raised in the trial court, see State v. Holland Plastics, Co., 111 Wis. 2d 497, 505-06, 331 N.W.2d 320 (1983), "we will not. . . blindside trial courts with reversals based on theories which did not originate in their forum." State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995).

¶ 10. There was a three-day jury trial in this case involving many resources, as well as motions after the verdict. Overnite had ample opportunity to make an argument regarding blacklisting, but did not do so. We have reviewed the record, and nowhere do we find any argument by Overnite that the action should be preempted because Behling's statements amounted to blacklisting. In its motions after the verdict, Overnite framed the issue as whether there was a labor dispute, and the trial court ruled on that issue only. Blacklisting is a different issue altogether. Under these circumstances, we will not overturn the verdict based on an argument that the trial court was never given an opportunity to address.

B. Employer's Conditional Privilege Under Wis. Stat. § 895.487

¶ 11. An employer has a conditional privilege under Wis. Stat. § 895.487 to make statements about a former employee. Overnite argues that, to abuse the privilege, statements must be made with actual malice, that is, with knowledge of falsity or with reckless disregard for the truth. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 528, 563 N.W.2d 472 (1997). Express malice, however, requires only a showing of ill will, bad intent, envy, spite, hatred, revenge, or other bad motives against the person defamed. Polzin v. Helmbrecht, 54 Wis. 2d 578, 587-88, 196 N.W.2d 685 (1972). Because the jury found express malice, and not actual malice, Overnite contends it cannot be held liable.

¶ 12. The interpretation of a statute and its application to a set of facts are questions of law we review independently. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999). "The purpose of statutory interpretation is to discern the intent of the legislature," and we look to the plain language of the statute to determine intent. Id. at 365. Only if the statutory language renders legislative intent ambiguous do we resort to judicial construction. Id.

¶ 13. Wisconsin Stat. § 895.487(2) states:

An employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from all civil liability that may result from providing that reference. The presumption of good faith under this subsection may be rebutted only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference, that the employer made the reference maliciously or that the employer made the reference in violation of s. 111.322. (Emphasis added.)

The statute is silent as to whether actual or express malice is required.

¶ 14. Both Overnite and Gibson point to a memo from the Wisconsin Legislative Reference Bureau to the sponsor of the bill that became Wis. Stat. § 895.487. At the time the statute was enacted, the common law simply required express malice to rebut the conditional privilege. See Calero v. Del Chem. Corp., 68 Wis. 2d 487, 507, 228 N.W.2d 737 (1975) ("The proper test to apply to determine whether the nonconstitutional conditional privilege was abused is .a question of express malice. This is what is termed 'common law malice,' by the United States Supreme Court." (Citation omitted.)). The Legislative Reference Bureau encouraged the legislature to specifically require express malice in the statute as well in order to clarify the standard. However, the legislature made no change.

¶ 15. Overnite interprets the legislature's failure to make the suggested change to mean it intended the standard to be actual malice. Gibson's interpretation is that the legislature intended to retain the common law standard of express malice. We agree with Gibson.

¶ 16. Wisconsin Stat. § 895.487(2) provides three ways in which the presumption of good faith may be rebutted: (1) "the employer knowingly provided false information in the reference," (2) "the employer made the reference maliciously," or (3) "the employer made the reference in violation of s. 111.322." The first option could arguably require actual malice because it requires that the employer act "knowingly." However, there remain two other options. The second option simply requires malice. The legislature was alerted to the ambiguity of the word "maliciously" but did not make any change. Common law prevails in Wisconsin until changed by statute. Aaby v. Citizens Nat'l Bank, 197 Wis. 56, 57, 221 N.W. 417 (1928). To abrogate the common law, the intent of the legislature must be clearly expressed, either in specific language or in a manner that leaves no reasonable doubt of the legislature's purpose. Sullivan v. School Dist. No. 1 Tomah, 179 Wis. 502, 506, 191 N.W. 1020 (1923). We therefore conclude that the legislature intended to keep the same standard of malice as existed in the common law-express malice.

¶ 17. Our conclusion is further supported by the jury instructions. See State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661 (1993) ("[W]hile jury instructions are not precedential, they are of persuasive authority."). Like Wis. Stat. § 895.487(2), Wis JI — Civil 2507 lists ways in which the jury can find that an employer abused its privilege to make statements about former employees. First, the jury may find that the defendant made the statements knowing that they were false or in reckless disregard as to the truth or falsity of them. This is actual malice. However, the jury may also find defamation where the defendant made statements solely from spite or ill will. This is express malice, which is what the jury found here. Actual malice is not required.

C. Punitive Damages

¶ 18. Next, Overnite contends that the punitive damages are excessive. Punitive damages may properly be imposed to further a state's legitimate interest in punishing unlawful conduct and deterring its repetition. BMW of N. Am., Inc. v Gore, 517 U.S. 559, 568 (1996). In Wisconsin, the award of punitive damages is within the discretion of the jury, and "We are reluctant to set aside an award merely because it is large or we would have awarded less." Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 626, 563 N.W.2d 154 (1997).

¶ 19. Although we review an award of damages independently, the Due Process Clause of the Fourteenth Amendment imposes substantive limits on the size of a punitive damages award. Management Computer Servs. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 193, 557 N.W.2d 67 (1996).

¶ 20. In determining whether a punitive damage award is excessive, we consider, from the following factors, those most relevant to the case: (1) the grievousness of the acts; (2) the degree of malicious intent; (3) whether the award bears a reasonable relationship to the award of compensatory damages; (4) the potential damage that might have been caused by the acts; (5) the ratio of the award to civil or criminal penalties that could be imposed for comparable misconduct; and (6) the wealth of the wrongdoer. Id. at 194.

¶ 21. Here, the relevant factors are the first, second, third, and sixth. The first two factors are the grievousness of the acts and the degree of malicious intent. Over the course of three days, the jury heard evidence regarding the statements Behling allegedly-made as well as testimony that contradicts Behling's statements. For example, Arden's report noted that Behling commented that Gibson's paperwork "needed help like you wouldn't believe." However, Gibson's employment file for Overnite showed no incidents of Gibson ever being reprimanded for poor paperwork. Behling also commented that Gibson was a below average employee. However, none of Gibson's previous employers had any negative comments about Gibson's performance.

¶ 22. Gibson's manager at USF Holland testified that Gibson would not have been fired absent Behling's reference. After leaving USF Holland, Gibson interviewed with some companies but was unable to secure a job for a year and a half. Behling gave employment references to many of the places Gibson interviewed but was not hired. From this and other evidence, the jury concluded that Behling's actions were grievous and constituted express malice toward Gibson.

¶ 23. The next factor is whether the award bears a reasonable relationship to the compensatory damages award. Our supreme court's recent decision in Trinity Ev. Church v. Tower Ins. Co., 2003 WI 46, 261 Wis. 2d 333, 661 N.W.2d 789, is instructive. There, the court approved punitive damages seven times greater than the compensatory damages. See id., ¶ 69. The punitive damages here are approximately eight times greater than the compensatory damages ($250,000 and $33,000, respectively). We do not consider this to be significantly greater than the award upheld in Trinity.

¶ 24. As a final factor, we consider Overnite's wealth. Wealth of the wrongdoer is an appropriate factor in determining the amount of punitive damages to award. Fahrenberg v. Tengel, 96 Wis. 2d 211, 234, 291 N.W.2d 516 (1980). The parties stipulated that Overnite's wealth amounted to $315,013,578. The jury was properly instructed that it should award an amount in punitive damages that would serve to punish Over-nite for its conduct and deter it from acting similarly in the future. The jury awarded $250,000. This amount is not shocking given the evidence and Overnite's wealth. In light of our discussion of the relevant factors, we conclude the punitive damages are not excessive.

D. Causation

¶ 25. Finally, Overnite argues that the court erroneously failed to require the jury to find that Behling's statements caused Gibson's damages. However, Over-nite cites to nothing in the record to indicate that it objected to the court's instructions. Furthermore, the court did instruct the jury that the damage award must reflect "the amount of actual financial loss suffered by Mr. Gibson as caused by the defamatory statements." (Emphasis added.) Additionally, the court instructed: "Before you may find that Mr. Gibson suffered losses as a result of the defamatory employer reference, you must be satisfied that the defamatory statements are a substantial factor in producing that loss." (Emphasis added.) Consequently, the record shows the jury was instructed that it had to find that the damages were caused by the defamation.

By the Court. — Judgment and order affirmed.

       When an activity is arguably subject to § 8 of the National Labor Relations Act, state and federal courts must defer to the National Labor Relations Board in order to avoid the danger of state interference with national policies. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959).

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

       Though not cited by the parties, we acknowledge the United States Supreme Court's decision in State Farm Mut. Auto Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003). There, the Court determined that an award of $1 million in compensatory damages and $145 million in punitive damages violated due process. Id. at 1519. However, in Campbell, the compensatory damages for emotional distress already contained a punitive element, rendering an additional punitive award unnecessary. Id. at 1516-1517. Here, $22,000 of the $33,000 awarded for compensatory damages was for financial damages. As a result, the compensatory damage award had little, if any, punitive element.


author: WEDEMEYER, EJ.

text:
    Christopher J. Keller and Amy Keller, Plaintiffs-Appellants, v. James R. Kraft and City of Milwaukee, Defendants-Respondents.
    Court of Appeals

      No. 02-3377.

      Oral argument August 5, 2003.—

      Decided September 23, 2003.

    2003 WI App 212
    (Also reported in 671 N.W.2d 361.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Brian J. Henderson of Henderson & Levihn of Milwaukee. There was oral argument by Brian J. Henderson.

      On behalf of the defendants-respondents, the cause was submitted on the briefs of Grant F. Langley, city attorney by Michael G. Tobin, assistant city attorney of Milwaukee. There was oral argument by Michael G. Tobin.

    Before Wedemeyer, EJ., Fine and Schudson, JJ.
   WEDEMEYER, EJ.

¶ 1. Christopher J. and Amy Keller appeal from a judgment dismissing their complaint against James R. Kraft and the City of Milwaukee. The Kellers contend that their claim falls into the third exception within the worker's compensation statute, Wis. Stat. § 102.03(2) (2001-02), thus permitting recovery for injuries suffered as a result of an automobile accident between co-employees. They assert the trial court erred in concluding that their claim was barred by the exclusive remedy provisions of the worker's compensation law. Because the facts of this case trigger the third co-employee exception within § 102.03(2), the trial court erred in ruling that the Kellers' complaint was barred by the exclusive remedy provisions of the worker's compensation law. We reverse and remand for further proceedings.

I. BACKGROUND

¶ 2. On August 31, 2000, Christopher Keller was driving his personal automobile while on duty as a firefighter with the Milwaukee Fire Department. Keller was en route to a grocery store to purchase supplies for a meal at the firehouse. At the same time, Kraft, who was on duty as a Milwaukee Eolice officer, was driving a Milwaukee Eolice Department vehicle. At or near the intersection of West Wells Street and James Lovell Street, the two vehicles collided, allegedly as the result of Kraft's negligence. Keller's vehicle was totaled and he suffered personal injuries as a result of the accident. It is undisputed that Keller received worker's compensation benefits from the City of Milwaukee.

¶ 3. On June 7, 2002, the Kellers filed a summons and complaint against Kraft and the City to seek compensation for personal injuries. Kraft and the City filed an answer alleging, among other things, that the worker's compensation law was the exclusive remedy for any injuries resulting from this accident. Kraft and the City filed a motion for summary judgment on that basis. The trial court granted the motion and dismissed the complaint. The Kellers now appeal.

II. DISCUSSION

¶ 4. The issue in this case involves the interpretation of the worker's compensation statute and the third exception provided within Wis. Stat. § 102.03(2), relating to suits between co-employees. Accordingly, our review is de novo. See Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 26, 251 Wis. 2d 171, 641 N.W.2d 158. In interpreting statutes, our goal is to ascertain the intent of the legislature, and "[t]he first step in any statutory analysis is to look at the language of the statute." Hutson v. State of Wis. Personnel Comm'n, 2003 WI 97, ¶ 49, 263 Wis. 2d 612, 665 N.W.2d 212 (citation omitted). The court must give effect to the plain, ordinary and accepted meaning of that language. Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 22, 241 Wis. 2d 605, 623 N.W.2d 94. In order to ascertain legislative intent, we may also examine "the scope, history, context, subject matter, and object of the statute." Garibay v. Circuit Court, 2002 WI App 164, ¶ 6, 256 Wis. 2d 438, 647 N.W.2d 455.

¶ 5. The language of the statute at issue in this case provides:

Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employee to bring action against any coem-ployee for an assault intended to cause bodily harm, or against a coemployee for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance.

Wis. Stat. § 102.03(2) (emphasis added). In applying the plain language of the statute, we conclude that the statute is unambiguous. The dispute centers on the emphasized language, which we refer to as the third co-employee exception to the exclusive remedy provisions of the worker's compensation law.

¶ 6. It is the Kellers' contention that the third exception removes this claim from the general rule that an employee who receives worker's compensation is precluded from bringing suit against a co-employee. The Kellers contend that the language is clear: the exclusive remedy does not apply to co-employee suits when a local ordinance provides that the employer will indemnify the co-employee from any judgments. Here, the Kellers point out that a local ordinance exists, which will indemnify Kraft for any liability he incurs as a result of any personal injury arising from this case. The ordinance specifically provides:

3-23. Liability When Sued in Official Capacity. No officer of any city, no matter how organized, shall be required to file an undertaking, or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of quo warranto or any other kind of action involving directly the title to his office, nor shall any city officer be liable for any costs or damages, but cost or damages, if any, shall be awarded against the city.

Section 3-23 of the Milwaukee City Charter. The Kellers contend that this ordinance will indemnify Kraft against any judgment and, therefore, the third exception for co-employees under the worker's compensation statute applies, permitting their suit.

¶ 7. Kraft and the City argue that the exception does not apply, and that the suit is barred by the exclusive remedy provisions of the worker's compensation law. They contend that the local ordinance was enacted solely to reflect the public employee indemnification requirement of Wis. Stat. § 895.46. They argue that the ordinance does not operate to waive the worker's compensation exclusive remedy provision, and that the purpose of the ordinance is to protect City of Milwaukee officers from lawsuits, not to encourage fellow employees to sue each other. The trial court agreed with the defendants that the Kellers' lawsuit was barred by the exclusive remedy provisions of the worker's compensation law.

¶ 8. Our review demonstrates that the trial court erred in reaching such a conclusion. In reaching that holding, we review the history of the worker's compensation law and the exception involved in this matter. See State v. Peters, 2003 WI 88, ¶ 34, 263 Wis. 2d 475, 664 N.W.2d 171 (Abrahamson, C.J., concurring) (noting that even when statutory language is clear, we may engage in "a comprehensive view toward discerning legislative intent.")

¶ 9. Prior to 1978, Wis. Stat. § 102.03(2) did not preclude suits against co-employees. Rather, the section only precluded employees from suing their employer or worker's compensation carrier: "Where such conditions exist the right to the recovery of compensation pursuant to this chapter shall be the exclusive remedy against the employer and the worker's compensation insurance carrier." On January 1, 1978, the statute was amended to read as it appears today — barring suits between co-employees unless one of the three exceptions applies.

¶ 10. Before the enactment of the 1978 statute, there was substantial discussion concerning the co-employee exception amendment. The Worker's Compensation Advisory Council addressed the amendment repeatedly. The minutes from the council's November 1, 1976 meeting provide in pertinent part:

John Lawton appeared as attorney for AFSCME in opposition to the proposed co-employe exemption from suit. He stated that as far as the union he represented was concerned they had lobbied hard and had obtained through legislation and agreement provisions under which the employing governmental unit would pay any judgment recovered against an employe operating in the scope of his employment. He stated the feeling of the union that to amend the law so that one employe could not sue another would amount to an unfair labor practice.

¶ 11. The council minutes from the December 13, 1976 meeting state:

Discussion was held on the proposed co-employe exclusion. Mr. Grenell inquired about the possibility of drafting a provision that would limit the co-employe liability but permit recovery against a fellow employe in the event that there were auto or other insurance.

¶ 12. The January 12, 1977 council minutes indicate:

Gordon Gronnert, Risk Manager for the State of Wisconsin, made a presentation concerning co-employe exemptions and coverage of employes under current insurance policies. Written copies of this statement were distributed to members of the Advisory Council along with copies of the typical co-employe exemptions in liability policies. Mr. Gronnert stated his.position in favor of an amendment that would restrict the right to sue fellow employes. He stated that the Legislative Council had endorsed a proposed amendment to Wisconsin Statutes s. 895.46 to eliminate liability on the part of state and other employers for payment of judgments on tort claims where the suit was between fellow employes of the same employer and worker's compensation benefits were payable.

¶ 13. An explanation of a proposed Worker's Compensation Advisory Council bill notes:

A proposed amendment also permits suits against a co-employe where there is liability of a governmental unit to pay judgments against employes under the provisions of Wisconsin Statutes 895.46 or under collective bargaining agreement or ordinance. Public employe unions felt strongly that in many cases they had earned the right to have the judgments paid under collective bargaining agreements and should not be deprived of the benefit of their bargain. The Worker's Compensation Advisory Council was also aware of the fact that the Legislative Council has introduced a bill which would eliminate the liability of the government unit to pay judgments against a co-employe where the person suing was entitled to benefits under the Worker's Compensation Act. The Worker's Compensation Advisory Council felt that this was a policy matter for determination by the Legislature with which it should not interfere.

¶ 14. Finally, of pivotal importance was a proposed amendment to Wis. Stat. § 895.46(1), 1977 A.B. 378, which would have eliminated the indemnification requirement when worker's compensation benefits have been received:

The state or political subdivision shall not be required to pay the judgment against the officer or employe if the acts complained of were committed against a coemploye and the state or political subdivision is liable for benefits to the coemploye under ch. 102.

Significantly, this proposed bill failed passage and never became law.

¶ 15. Tracking the history of the amendment and issues related to it is helpful in ascertaining the meaning of the third co-employee exception to the exclusive remedy provisions of the worker's compensation law. Having reviewed the plain language, together with the aforementioned documents, we conclude that the third exception at issue here is unambiguous. An employee who receives worker's compensation benefits may also file suit against a co-employee when a governmental unit is obligated to pay judgments against that employee pursuant to a collective bargaining agreement or a local ordinance.

¶ 16. This was an exception subject to a substantial amount of discussion, including indications from employees who wanted to retain the benefit of what had been bargained for in collective bargaining agreements. Union employees believed that taking away the right to sue a co-employee who causes injury would amount to an unfair labor practice.

¶ 17. The City suggests that interpreting the statute in this way would be inconsistent with the theory of the worker's compensation act, which assures a smaller but more certain recovery than what might be available in a tort action. We are not convinced. The legislature determined that individuals injured by co-employees in certain circumstances should not be limited to worker's compensation benefits. We are bound to apply the plain language of the statute enacted by the legislature.

¶ 18. As applied to this case, the Kellers are correct in asserting that their co-employee claim is not barred by the exclusive remedy provisions of the worker's compensation law. Rather, the facts here fall squarely into the third co-employee exception, which permits a suit against co-employee Kraft because section 3-23 of the Milwaukee City Charter is an ordinance providing for payment of any judgment against Kraft. Accordingly, the trial court erred in dismissing the Kellers' summons and complaint. We reverse the judgment and remand for further proceedings.

By the Court. — Judgment reversed and cause remanded.

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

       Wisconsin Stat. § 895.46 provides, in part:
      State and political subdivisions thereof to pay judgments taken against officers. (1) (a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency.

       The Worker's Compensation Advisory Council consists of five representative of labor, five of industry, and three nonvoting representatives of insurance carriers and a representative from the Department of Workforce Development. The council also has liaison representatives from the medical community. In 1976, the council began deliberations related to revisions of the worker's compensation law. It met on 19 separate occasions and considered more than 70 proposals for changes in the pre-1978 statute.


author: FINE, J.

text:
    Estate of Mark Capistrant, deceased, by Patricia A. Capistrant, Independent Executor, Patricia A. Capistrant, individually, and Rebecca Capistrant, Sean Capistrant, and Tyler Capistrant, minors, by their Guardian ad Litem, Ted M. Warshafsky, Plaintiffs-Respondents, v. Froedtert Memorial Lutheran Hospital, Inc., The Medical College of Wisconsin, Inc., and Medical College of Wisconsin Affiliated Hospitals, Inc., Defendants, Physicians Insurance Company of Wisconsin, Inc., Defendant-Respondent, OHIC Insurance Company, Defendant, Wisconsin Patients Compensation Fund, Defendant-Appellant.
    Court of Appeals

      No. 03-0014.

      Submitted on briefs September 2, 2003.—

      Decided September 23, 2003.

    2003 WI App 213
    (Also reported in 671 N.W.2d 400.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul J. Kelly and Maile E. Buell of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John S. Skilton and Sarah E. Reindl of Heller Ehrman White & McAuliffe, L.L.P., Madison; and Michael B. Van Sicklen. and Nai-kang Tsao of Foley & Lardner, Madison.
    Before Fine, Schudson and Curley, JJ.
   FINE, J.

¶ 1. The Wisconsin Patients Compensation Fund appeals from a judgment directing it to pay $2,108,065 plus costs to the plaintiff Patricia A. Capis-trant as the result of a jury's verdict finding that various physicians were responsible for the death of her husband, Mark Capistrant. The Fund contends that all of the primary insurance covering those physicians should be viewed as an homogenous pool of funds that must first be exhausted before the Fund's excess-liability coverage kicks in. We disagree and affirm. Physicians Insurance Company of Wisconsin, Inc., seeks frivolous-appeal costs under Wis. Stat. Rule 809.25(3)(c)2. We deny the motion.

I.

¶ 2. This is a dispute between the Fund and Physicians Insurance. No one on appeal challenges either the jury's findings of negligence or its award of damages. The jury found that Louis Somberg, M.D., Rebecca Freer, M.D., Jeanette Chassaignac, M.D., and a radiology resident, whom the verdict does not name, were all causally negligent in connection with Mark Capistrant's treatment and death at Froedtert Memorial Lutheran Hospital on July 31,1997. Drs. Freer and Chassaignac as well as the radiology resident worked at Froedtert, and were employed by the Medical College of Wisconsin Affiliated Hospitals, Inc. Dr. Somberg worked for The Medical College of Wisconsin, Inc. The jury apportioned the causal negligence as follows:

• Dr. Somberg: 70%
• Dr. Freer: 12.5%
• Dr. Chassaignac: 5%.
• The radiology resident: 12.5%

The jury assessed total damages (including two items that were answered by the trial court upon the parties' stipulation) of $2,700,000 plus an unspecified amount for funeral expenses, which the verdict form indicated would be determined by the trial court.

¶ 3. Dr. Somberg was self-insured through his employer, The Medical College, with a limit of $600,000 per occurrence. The other physicians were insured by Physicians Insurance, with limits of $1,000,000 per occurrence. Physicians Insurance also provided an additional $1,000,000 per occurrence insurance for residents employed by Medical College of Wisconsin Affiliated Hospitals. Thus, excluding consideration of the Fund's liability in this case, there was the self-insurance for Dr. Somberg of $600,000, and, according to the Fund, $4,000,000 of total primary coverage provided by Physicians Insurance to Drs. Freer and Chassaignac and the radiology resident. The Fund contends that this $4,600,000 must first be exhausted before its statutory liability kicks in. On the other hand, Physicians Insurance argues that, subject to the Fund's right to seek contribution for the proportion of causal negligence attributable to Drs. Freer and Chassaignac and the radiology resident, the Fund must cover Dr. Somberg's joint and several liability for everything over his $600,000 self-insurance limit. We agree with Physicians Insurance.

II.

¶ 4. The Fund is, in essence, an excess-coverage carrier, created by the legislature to provide medical-malpractice insurance for damages that exceed a health-care provider's underlying primary insurance or self-insurance. Wis. Stat. § 655.27(1); Patients Comp. Fund v. Lutheran Hospital-LaCrosse, Inc., 223 Wis. 2d 439, 452-453, 588 N.W.2d 35, 40 (1999). The scope of the Fund's liability is set by statute. Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 607, 547 N.W.2d 578, 580-581 (1996). We interpret and apply the applicable statutes de novo. Wisconsin Patients Comp. Fund v. Physicians Ins. Co. of Wis., Inc., 2000 WI App 248, ¶ 8, 239 Wis. 2d 360, 366-367, 620 N.W.2d 457, 460.

¶ 5. The goal of statutory construction is, of course, to discern the legislature's intent. Id., 2000 WI App 248, ¶ 9, 239 Wis. 2d at 368, 620 N.W.2d at 460-461. Thus, we first look at the statute's language. See id., 2000 WI App 248, ¶ 9, 239 Wis. 2d at 368, 620 N.W.2d at 461. If the language is clear, we simply apply the words as they stand, without diving beneath the surface in search of delphic signs of other meanings. Id., 2000 WI App 248, ¶ 12, 239 Wis. 2d at 371, 620 N.W.2d at 462; see also State v. Peters, 2003 WI 88, ¶ 14, 263 Wis. 2d 475, 481-482, 665 N.W.2d 171, 174.

¶ 6. Every health-care provider in Wisconsin must carry insurance, or be self-insured, up to certain limits. Wis. Stat. § 655.23(3)(a). The Fund must pay "that portion of a medical malpractice claim which is in excess of the limits ... or the maximum liability limit for which the health care provider is insured, whichever limit is greater." Wis. Stat. § 655.27(1). Carriers providing primary coverage, like Physicians Insurance here, "are liable for malpractice for no more than the limits [set out in the statute] or the maximum liability limit for which the health care provider is insured." Wis. Stat. § 655.23(5). Further, the carrier providing primary coverage "agrees to pay in full. . . [a]ny ... judgment imposed against the insured under [chapter 655] up to the limits [set out in the statute] or the maximum liability limit for which the health care provider is insured, whichever is greater." Wis. Stat. § 655.24(2)(a)2. These provisions comport with the general rule that an insurance carrier is only required to pay what it contracted to pay. Ehlers v. Johnson, 164 Wis. 2d 560, 563, 476 N.W.2d 291, 293 (Ct. App. 1991) (absent contrary statute, insurance company's liability turns on the provisions of the insurance contract). Here, Physicians Insurance contracted to pay damages that its insureds were "legally obligated to pay" as the result of their medical malpractice. Dr. Somberg was not one of its insureds.

¶ 7. No one disputes that Drs. Somberg, Freer, Chassaignac, and the radiology resident are "health care provider[s]." See Wis. Stat. §§ 655.001(8) (" 'Health care provider means a person to whom this chapter applies under s. 655.002 (1)."); 655.002(1) ("[T]his chapter applies to ... (a) A physician ... for whom this state is a principal place of practice and who practices his or her profession in this state more than 240 hours in a fiscal year."). Additionally, no one disputes that Dr. Somberg's self-insurance limit of $600,000 complied with Wis. Stat. § 655.23(4)(c)2 in connection with Mark Capistrant's treatment. The respective liability of the Fund and Physicians Insurance turns on the jury's apportionment of the physicians' causal negligence in their treatment of Mark Capistrant.

¶ 8. "A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed." Wis. Stat. § 895.045(1). Section 895.045(1) applies to medical-malpractice actions under Wis. Stat. ch. 655 by virtue of Wis. Stat. § 893.55(6), which makes § 895.045(1) applicable to "health care providers." Although the Fund argues that § 895.045(1) should not apply to it because it is not a "health care provider," the Fund, like any entity providing insurance coverage, stands in the shoes of those to whom it provides coverage, and is responsible for their conduct within the ambit of that coverage. See Wisconsin Patients Comp. Fund v. Continental Cas. Co., 122 Wis. 2d 144, 152, 361 N.W.2d 666, 671 (1985).

¶ 9. As noted, the Fund must pay "that portion of a medical malpractice claim which is in excess of the limits ... or the maximum liability limit for which the health care provider is insured, whichever limit is greater." Wis. Stat. § 655.27(1). Wisconsin Stat. § 895.045(1) establishes the amount of the medical malpractice claim for which a health-care provider is liable. Dr. Somberg is jointly and severally liable for the full award because his causal negligence was more than fifty-one percent. Under § 655.27(1), the Fund must pay what Dr. Somberg owes, less his $600,000 of self-insurance. The same result is required by Wis. Stat. § 655.27(5)(d).

¶ 10. Wisconsin Stat. § 655.27(5)(d) provides, as material to our analysis: "A person [here, Patricia A. Capistrant] who has recovered a final judgment... against a health care provider [here, Dr. Somberg] ... may file a claim with [the Fund] to recover that portion of such judgment. . . which is in excess of the limits in s. 655.23 (4) [here, $600,000]." Although the Fund argues that the phrase "which is in excess of the limits in s. 655.23 (4)" encompasses all the insurance provided by Physicians Insurance to Drs. Freer and Chassaignac and the radiology resident (and not just that proportional to the percentage of causal negligence attributable to those physicians), only Dr. Somberg is on the hook for the entire award. As we have seen, Physicians Insurance did not insure Dr. Somberg.

¶ 11. Stated another way, Wis. Stat. § 895.045(1) provides: "The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person." Thus, Dr. Freer and the radiology resident are each responsible for only 12.5 percent of the award, and Dr. Chassaignac is responsible for only 5 percent of the award. Contrary to the Fund's contention, Physicians Insurance can be liable for no more than its insureds are liable; Wis. Stat. § 655.23(3) requires that "every health care provider . . . shall insure .. .the health care provider's liability." (Emphasis added.) Physicians Insurance insured only Drs. Freer and Chassaignac and the radiology resident; it did not insure Dr. Somberg. The Fund cannot shanghai the Physicians Insurance policies to cover Dr. Somberg.

III.

¶ 12. Physicians Insurance seeks frivolous-appeal costs under Wis. Stat. Rule 809.25(3)(c)2, which, as material to Physicians Insurance's motion, mandates an award of "costs, fees, and reasonable attorney fees" to the party successful on the appeal if we find that the opposing "party's attorney knew, or should have known, that the appeal.. . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." See also Wis. Stat. § 809.25(3)(a). In support of its motion, Physicians Insurance not only reiterates the arguments made in its appellate brief, but also points to a stipulation where the Fund acknowledged that, in the part pointed to by Physicians Insurance, the "Fund provides coverage in excess of the limits expressed in Sec. 655.23(4), Wis. Stats., or the maximum limit for which a healthcare [sic] provider is insured, whichever limit is greater" for Drs. Freer and Chassaignac, among others. We disagree with Physicians Insurance's contention that this stipulation wholly undercuts the Fund's legal arguments on this appeal, and although we have rejected these arguments, the strength of which from the Fund's standpoint may have been nourished by the sweet sugar of hope, we cannot say that they were frivolous within the meaning of Rule 809.25(3)(c)2. Accordingly, we deny Physicians Insurance's motion for frivolous-appeal costs.

By the Court. — Judgment affirmed; motion for frivolous-appeal costs denied.

       Under Wis. Stat. ch. 655, a "fiscal year" is "the period beginning on July 1 and ending on the following June 30." Wis. Stat. § 655.001(6).

       WISCONSIN Stat. § 655.23(4)(c)2 permits a self-insured health-care provider to opt for an underlying limit of "not less than $600,000 for each occurrence on or after July 1, 1997, and before July 1, 1999."

       Wisconsin Stat. § 655.27(5)(d), reads in full:
      A person who has recovered a final judgment or a settlement approved by the board of governors against a health care provider, or an employee of a health care provider, that has coverage under the fund may file a claim with the hoard of governors to recover that portion of such judgment or settlement which is in excess of the limits in s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater. In the event the fund incurs liability for future payments exceeding $1,000,000 to any person under a single claim as the result of a settlement or judgment that is entered into or rendered under this chapter for an act or omission that occurred on or after May 25, 1995, the fund shall pay, after deducting the reasonable costs of collection attributable to the remaining liability, including attorney fees reduced to present value, the full medical expenses each year, plus an amount not to exceed $500,000 per year that will pay the remaining liability over the person's anticipated lifetime, or until the liability is paid in full. If the remaining liability is not paid before the person dies, the fund may pay the remaining liability in a lump sum. Payments shall be made from money collected and paid into the fund under sub. (3) and from interest earned thereon. For claims subject to a periodic payment made under this paragraph, payments shall he made until the claim has been paid in full, except as provided in s. 655.015. Periodic payments made under this paragraph include direct or indirect payment or commitment of moneys to or on behalf of any person under a single claim by any funding mechanism. No interest may be paid by the fund on the unpaid portion of any claim filed under this paragraph, except as provided under s. 807.01 (4), 814.04 (4) or 815.05 (8).

       Physicians Insurance has paid the amounts attributable to the percentage of causal negligence of its insureds — Drs. Freer and Chassaignac, and the unnamed radiology resident.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John A. Jipson, Defendant-Appellant.
    Court of Appeals

      No. 03-0866-CR.

      Submitted on briefs September 9, 2003.—

      Decided September 23, 2003.

    2003 WI App 222
    (Also reported in 671 N.W.2d 18.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shunette T. Campbell, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. John Jipson appeals the circuit court's denial of his postconviction motion for plea withdrawal and resentencing. Jipson argues he did not know the State had to prove as an element of second-degree sexual assault of a child that he had sexual contact for purposes of sexual degradation, humiliation, arousal, or gratification. Accordingly, he claims his plea was not entered knowingly, voluntarily, and • intelligently and therefore is entitled to withdraw it. See State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986). We agree and reverse the trial court's order.

Background

¶ 2.. On July 5, 2001, Jipson was charged with one count of repeated sexual assault of a child, contrary to Wis. Stat. § 948.025(1), subject to an enhanced penalty under § 948.025(2m) because he was responsible for the welfare of the victim. As part of a plea agreement, Jipson pled no contest to a single count of second-degree sexual assault of a child, by sexual contact, contrary to Wis. Stat. § 948.02(2). Section 948.02(2) defines second-degree sexual assault of a child as having "sexual contact. . . with a person who has not attained the age of 16." Sexual contact is defined as "Intentional touching by the complainant or defendant. . . for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant." Wis. Stat. § 948.01(5).

¶ 3. On the plea questionnaire/waiver of rights form, Jipson's attorney listed the elements of the offense as "Had sexual contact, w/person under age 16, knowing contact." The attorney testified he used the term "knowing contact" on the plea questionnaire to indicate that whatever contact occurred between Jipson and the victim was not inadvertent or accidental. The attorney never explained to Jipson that the State had to prove Jipson had intentional sexual contact for the purpose of his sexual gratification or any other purpose listed in Wis. Stat. § 948.01(5). During the plea colloquy, the trial court never discussed with Jipson the specific elements of the offense. Jipson nevertheless pled no contest and was sentenced to the maximum penalty of thirty years' imprisonment, twenty years' initial confinement followed by ten years' extended supervision.

¶ 4. Jipson filed a postconviction motion for relief seeking withdrawal of his plea. Jipson claimed he did not understand the State had to prove the sexual contact was intentionally done for purposes of sexual degradation, humiliation, gratification, or arousal. In the alternative, Jipson asked for sentence modification.

¶ 5. The trial court denied Jipson's motion on both grounds. Regarding the alleged defective no contest plea, the court acknowledged it failed to discuss with Jipson the specific elements of the offense. Nevertheless, the court concluded Jipson's plea was knowing and found his testimony to the contrary incredible. In support of its conclusion, the court found: Jipson was a forty-three-year-old man with a high school diploma plus some college education; he was not rushed into pleading no contest to the offense because the plea hearing occurred weeks after Jipson's preliminary hearing; his attorney went through the plea questionnaire/waiver of rights form with him section by section; his attorney explained the elements of the crime in common language and phrases that he thought Jipson would understand; and that it had not been shown the term "sexual gratification" must be used in the explanation as an element of the offense. Jipson appeals.

Discussion

¶ 6. Whether a plea was entered knowingly, voluntarily and intelligently is a question of constitutional fact. State v. Trochinski, 2002 WI 56, ¶ 16, 253 Wis. 2d 38, 644 N.W.2d 891. We review independently Jipson's plea, benefiting from the analysis of the circuit court. Id. Findings of historical or evidentiary facts will not be upset unless they are clearly erroneous. Id.

¶ 7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the defendant's guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures. Second, the defendant must merely allege he or she did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis. 2d at 268-69. If the defendant satisfies this test, the burden of persuasion then shifts to the State to show by clear and convincing evidence that the defendant's plea was somehow otherwise knowingly, voluntarily, and intelligently made, despite any shortcomings at the plea hearing. Id. at 274.

¶ 8. Jipson contends he established a prima facie case because the plea colloquy did not conform to Wis. Stat. § 971.08 and he was otherwise unaware the State had to prove sexual gratification as an element of second-degree sexual assault of a child. We agree.

¶ 9. Wisconsin Stat. § 971.08(1) requires the trial court to determine a plea "is made voluntarily with understanding of the nature of the charge." To understand the nature of the charge, the defendant must be aware of all the essential elements of the crime. State v. Nichelson, 220 Wis. 2d 214, 218, 582 N.W.2d 460 (Ct. App. 1998). While it is true the purpose of the sexual contact is not an element of the crime listed under Wis. Stat. § 948.02(2), but rather is a definition of the element "sexual contact" found in Wis. Stat. § 948.01(5), the courts have nevertheless crafted this to be an element of the offense. Id. at 220-21. In State v. Bollig, 2000 WI 6, ¶ 50, 232 Wis. 2d 561, 605 N.W.2d 199, the supreme court stated:

The essential elements of a charge of attempted sexual contact with a child under the age of thirteen include that the defendant attempted: 1) to have sexual contact with the victim; 2) the victim had not attained the age of thirteen at the time of the alleged contact; and 3) the alleged contact was for the purpose of defendant's sexual gratification or the victim's humiliation.

Thus, Jipson must be aware of this element before he can knowingly plead to the offense. Because the record revealed that neither the court nor Jipson's attorney explained to him this essential element, and because Jipson alleges he was not otherwise aware this was an element, he has made a prima facie showing under Bangert.

¶ 10. The State argues there is no requirement that the defendant understand the exact legal terms of each element, but rather need only understand the nature of the charge and have a general awareness of the elements. Trochinski, 253 Wis. 2d 38, ¶¶ 29-30. But in Trochinski, the supreme court clearly stated the defendant knew all the elements of the charged offense because they were listed in the plea questionnaire/waiver of rights form and mentioned during the plea colloquy. Id., ¶ 23. On this ground the Trochinski court distinguished Nichelson, where the defendant did not know the State had to prove as an element of the crime that the purpose of the sexual contact was for his own sexual gratification. In the end, Trochinski stands for the limited proposition that the circuit court does not have to "ensure the defendant specifically understands-how the State must prove each element." Id., ¶ 22. Thus, Trochinski is not applicable because here there was a total failure to inform Jipson of an essential element.

¶ 11. The second step in the Bangert analysis shifts the burden to the State to prove by clear and convincing evidence that, notwithstanding deficiencies at the plea hearing, the defendant's plea was otherwise knowingly, intelligently and voluntarily made. Bangert, 131 Wis. 2d at 274. However, no matter how incredible the defendant's prima facie case is, the State must present affirmative evidence to rebut it. See Nichelson, 220 Wis. 2d at 224-25. The State is not limited to what transpired at or before the plea hearing to meet this standard, but rather can scour the entire record for affirmative evidence. See id.

¶ 12. To prove Jipson's plea was knowingly made, the State offers Jipson's and his attorney's testimony at the postconviction hearing: With respect to Jipson's attorney, when asked why he wrote the elements on the plea questionnaire/wavier of rights form as "Had sexual contact, w/person under age 16, knowing contact," he testified he meant:

That it wasn't an accidental type of thing, because — the information that I had was there could have been, at least on one occasion, there could have been an accidental, at least the way he described to me, an accidental touching of something. That's why when I put down the knowing, the intentional thing, it is to indicate that it is not an inadvertent or accidental type of thing. I mean, that it was done for the purpose of causing the contact.

The State claims this proves Jipson's attorney conveyed to Jipson, and Jipson must have understood, that he was not being charged for accidentally touching the victim, or touching the victim for some purpose other than for sexual gratification. The State concludes this proves by clear and convincing evidence Jipson's plea was knowingly made. We disagree.

¶ 13. This testimony not only shows that Jipson was not specifically informed of the essential element that the sexual contact had to be for purposes of sexual degradation, humiliation, arousal, or gratification, it actually misstates the requisite mental element of the crime. The State does not have to prove the defendant "knowingly" touched the victim, or that it was merely done for the purpose of causing contact. Rather, the State has to prove there was "intentional touching. . . for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant." Wis. Stat. § 948.01(5)(a).

¶ 14. This is not a distinction without a difference. Wisconsin Stat. § 939.23(2) defines "know" as "requir[ing] only that the actor believes that the specified fact exists." Section 939.23(3) defines "intentionally" as

Mean[ing] that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition . .. the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally."

Whether one believes something exists or will happen is a different level of criminal intent as compared to whether it is one's conscious objective, that is, one's purpose, to do something. As a result, "knowing" contact and "intentional" contact are two very different things. For this reason, the testimony of Jipson's attorney does not provide clear and convincing evidence that Jipson's plea was knowingly made.

¶ 15. The State also uses Jipson's testimony at the postconviction hearing to prove he otherwise made a knowing plea of no contest to the charged offense. The relevant testimony is as follows:

Q: You knew [the charge] involved sexual intercourse?
A: That's what [the victim] was claiming.
Q: You told [the pre-sentence investigator] that your behavior with [the victim] was highly inappropriate?
A: I don't think I ever used the word highly. I may have used inappropriate.
Q: Other than for sexual gratification, would there have been any reason for you to have intentionally had contact, physical contact, with [the victim's] .breasts or vagina?
A: Not that I'm aware of.
Q: Even by your own admission, you had fondled her, and by your own admission, you and she were present in one another's company with little or no clothing, and you had an erect penis, is that correct?
A: I stated that. ■■
Q: And you're saying that doesn't indicate sexual attraction?
A: I don't know.

The State claims this proves by clear and convincing evidence Jipson understood the intent element of the crime. He knew he was not charged with accidentally touching the girl, and that Jipson admitted he had physical contact with the victim's intimate parts. We are not persuaded.

¶ 16. Jipson's answers, while incriminating, have no bearing on the focus here. That is, the answers do not establish Jipson knew the State had to prove the purpose of the sexual contact was an element of the crime. The critical inquiry is whether Jipson otherwise knew at the time of entering his plea all of the essential elements of the offense so that it can be said he knowingly pled guilty to the crime. His testimony does not establish this.

¶ 17. In conclusion, the State has failed to meet its burden. It has not shown any affirmative evidence that proves clearly and convincingly that Jipson's plea was knowingly, intelligently, and voluntarily made. See Bangert, 131 Wis. 2d at 274. Accordingly, Jipson is entitled to withdraw his plea. The circuit court order is reversed and the matter is remanded to the circuit court for further proceedings.

By the Court — Order reversed and cause remanded.

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

       The fourth amendment information stated:
      Count I: SECOND DEGREE SEXUAL ASSAULT OF A CHILD
      Have sexual contact with a person who had not yet attained the age of 16 years, contrary to Wisconsin Statute 948.02(2). This is a Class BC Felony which carries with it a fine not to exceed $10,000.00 or imprisonment not to exceed 30 years, or both.

       WISCONSIN Stat. § 971.08(1) states in pertinent part: "Before the court accepts a plea of guilty or no contest, it shall do all of the following: (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted."

        State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), involved a defective guilty plea to first-degree sexual assault of a child. The court held the defendant made a prima facie case that his plea did not conform to Wis. Stat. § 971.08 because he did not know the State had to prove as an element of the offense that sexual contact was for his own sexual gratification. Id. at 220. The court reasoned that a defendant must understand the nature of the constitutional rights he or she is waiving before they can be waived. Included in these rights is the requirement that the State prove each element of the crime beyond a reasonable doubt. To waive this right, the defendant must know and understand all of the essential elements of the crime. The court concluded, with little explanation because the State agreed, that sexual gratification is an element of sexual assault. See id. at 220, 225.

       Because we hold Jipson is entitled to withdraw his plea, we do not address whether the circuit court placed undue emphasis on his status as a foster parent in imposing his sentence or whether imposition of the maximum possible sen tence is unduly harsh and excessive under the facts of the case. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground for support of the judgment has been declared, there is no need to discuss the others urged.").


author: BROWN, J.

text:
    Cheryl Ellerman, Plaintiff-Appellant, v. City of Manitowoc and Blue Cross & Blue Shield United of Wisconsin, Defendants-Respondents.
    Court of Appeals

      No. 03-0322.

      Submitted on briefs August 14, 2003.—

      Decided September 24, 2003.

    2003 WI App 216
    (Also reported in 671 N.W.2d 366.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ralph J. Sczygelski of Sczy-gelski Law Firm, LLC of Manitowoc.
    On behalf of the defendant-respondent City of Manitowoc, the cause was submitted on the brief of Christopher R. Bandt of Nash, Spindler, Grimstad & McCracken LLP of Manitowoc.
    Before Anderson, PJ., Brown and Snyder, JJ.
   BROWN, J.

¶ 1. The sole issue in this appeal, an issue of first impression in Wisconsin, is whether a public parking lot is a "highway" within the meaning of Wis. Stat. § 81.15 (2001-02) — the limited immunity statute for maintenance of highways. If so, the City of Manitowoc is immunized from liability for injuries Cheryl Ellerman suffered as a result of a slip and fall in a parking lot alleged to be owned, maintained, monitored and repaired by the City. We hold that the term "highway" encompasses a public parking lot and, therefore, the City is entitled to immunity pursuant to §81.15. Accordingly, we affirm the circuit court's final order granting summary judgment to the City and dismissing Ellerman's complaint.

¶ 2. The facts relevant to this appeal are brief. On April 18, 2002, Ellerman filed a complaint against the City alleging that on March 8, 2001, she slipped and fell on a patch of ice in a parking lot alleged to be owned, maintained, monitored and repaired by the City. As a result of her fall, Ellerman suffered a severely broken ankle that required medical treatment. In its answer, the City denied negligence and argued that Wis. Stat. § 81.15 barred Ellerman's claim.

¶ 3. In her September 2002 deposition, Ellerman testified that on the night of March 8, 2001, she had parked her vehicle and was walking across the parking lot when she fell. Ellerman further testified that it had snowed either the night before or early in the morning of March 8th. Ellerman recalled that it had lightly snowed and there was not any heavy accumulation. She could not recall the last time there was snow accumulation prior to the incident.

¶ 4. Ellerman testified that the parking lot had some icy patches and that she had never seen the ice that she slipped on. She stated that she had fallen on a piece of ice that was approximately the size of a manhole cover. Ellerman testified that she had walked the same route the prior two mornings and did not notice any ice in her walking path. Ellerman did not know how long the ice that she slipped on had been there.

¶ 5. Based on Ellerman's deposition testimony, the City filed a motion for summary judgment, alleging that Wis. Stat. § 81.15 provided it with immunity. In its brief supporting summary judgment, the City argued that "the parking lot in which [Ellerman] slipped and fell is considered a 'highway' for the purposes of Wis. Stat. § 81.15" and that "the ice that existed on the parking lot did not exist for a 'continuous' period of three weeks." The circuit court agreed and granted summary judgment. Ellerman appeals.

¶ 6. "In reviewing a grant of summary judgment, this court applies the same standards as the trial court. A motion for summary judgment should be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Thompson v. Threshermen's Mut. Ins. Co., 172 Wis. 2d 275, 280, 493 N.W.2d 734 (Ct. App. 1992). However, "summary judgment is not appropriate if there is a material issue of fact or if different inferences may be drawn from the facts." Kohl v. F.J.A. Christiansen Roofing Co., 95 Wis. 2d 27, 32, 289 N.W.2d 329 (Ct. App. 1980). Whether a governmental entity is entitled to immunity pursuant to. Wis. Stat. § 81.15 under summary judgment submissions presents a question of law subject to de novo review. Henderson v. Milwaukee County, 198 Wis. 2d 747, 750, 543 N.W.2d 544 (Ct. App. 1995).

¶ 7. As we have indicated, Ellerman raises one issue on appeal: whether governmental immunity pursuant to Wis. Stat. § 81.15 applies to municipally maintained parking lots. Section 81.15 provides:

Damages caused by highway defects; liability of town and county. If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village .... No action may be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks. (Emphasis added.)

The express language of § 81.15 immunizes the City from liability that otherwise might result from the accumulation of ice on "bridges" or "highways." Case law has extended the definition of "highway" to include roads, streets, bridges, sidewalks, driveway aprons and shoulders of the highway. See Wheeler v. Town of Westport, 30 Wis. 392, 394, 396-97 (1872) (road as a highway); Byington v. City of Merrill, 112 Wis. 211, 215, 88 N.W. 26 (1901) (street as a highway); Leannah v. City of Green Bay, 180 Wis. 84, 85, 89, 192 N.W. 388 (1923) (bridge as a highway); Webster v. Klug & Smith, 81 Wis. 2d 334, 339, 260 N.W.2d 686 (1978) (sidewalk as a highway); Damaschke v. City of Racine, 150 Wis. 2d 279, 280, 283-84, 441 N.W.2d 332 (Ct. App. 1989) (driveway apron as a highway); Morris v. Juneau County, 219 Wis. 2d 543, 546, 579 N.W.2d 690 (1998) (shoulder of the highway included in highway). While these cases certainly provide guidance for interpreting the type of structures for which municipalities are provided immunity under § 81.15, none of the cases specifically address whether the term "highway" encompasses municipally maintained parking lots.

¶ 8. We begin our analysis by setting forth the appropriate definition for the term "highway." In Morris, our supreme court held that the definition of "highway" in Wis. Stat. § 340.01(22) applies to Wis. Stat. § 81.15. Morris, 219 Wis. 2d at 562. Section 340.01 provides the definitions for all words and phrases used in the statutory provisions relating to motor vehicles. Section 340.01(22) defines "highway" as "all public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel." Having set forth the appropriate definition, we now turn to a case in which our supreme court grappled with the application of a similar statutory definition to a private parking lot.

¶ 9. In City of Kenosha v. Phillips, 142 Wis. 2d 549, 557, 560, 419 N.W.2d 236 (1988), an operating while intoxicated case, the supreme court considered a privately owned parking lot to be outside the enforcement capability of the police for the purposes of Wis. Stat. § 346.61 because the lot was not "held out to the public." Section 346.61 provides:

Applicability of sections relating to reckless and drunken driving. In addition to being applicable upon highways [as defined in Wis. Stat. § 340.01(22)], ss. 346.62 to 346.64 are applicable upon all premises held out to the public for use of their motor vehicles .... (Emphasis added.)

In determining whether the lot was "held out to the public," the supreme court stated that the test was whether the person in control of the lot intended it to be available to the public for use of their motor vehicles. Phillips, 142 Wis. 2d at 557. The court then resorted to the Random House DictionaRY of the English Language 1562 (2d ed. 1987) to define "public" as "of, pertaining to, or affecting a population or a community as a whole." Phillips, 142 Wis. 2d at 557. The court concluded that because the privately owned lot was designated for use by employees of the lot owner and the employees constituted a "defined limited portion of the citizenry," rather than the population or community as a whole, the lot was not "held out to the public." Id.

¶ 10. While we acknowledge that Phillips involves a different statute, we find the case instructive. We can discern no difference between the phrase "held out to the public" and "open to the use of the public." The term "open" as it is used in Wis. Stat. § 340.01(22) is not defined in the statutes and its ordinary meaning as ascertained from a standard dictionary applies. "Open" is defined as "without restrictions as to who may participate." The Random House Dictionary of the English Language 1356 (2d ed. 1987). As this definition indicates, an area is "open" if it is intended to be freely accessible and available. As Phillips teaches, the word "public" means "of, pertaining to, or affecting a population or a community as a whole." Phillips, 142 Wis. 2d at 557. Accordingly, we are convinced a "highway" is an area that the entire community has free access to travel on. The public parking lot here, unlike the privately owned restricted parking lot at issue in Phillips, is available to the entire community for vehicular travel. Based on this analysis, the City's public parking lot is a "highway" as we have interpreted that term for the purposes of Wis. Stat. § 81.15.

¶ 11. Ellerman contends that we should not rely on Wis. Stat. § 340.01(22), but instead should look to Wis. Stat. § 84.60(1)(b), the statute pertaining to the establishment of bikeways, or Wis. Stat. § 943.01(2)(a), the statute governing crimes against property, for a definition of "highway." We find this argument perplexing given the supreme court's clear mandate in Morris that courts are to use § 340.01(22) to guide their interpretation of Wis. Stat. § 81.15. See Morris, 219 Wis. 2d at 561-62 (observing that reliance on the definition of "highway" in § 340.01(22) was consistent with the court's construction of the term as used in § 81.15 for over 120 years). We therefore reject Ellerman's argument.

¶ 12. Ellerman next argues that even if we apply Wis. Stat. § 340.01(22), the trend in Wisconsin law is to strictly construe Wis. Stat. § 81.15 and therefore we should interpret § 340.01(22) so as to exclude public parking lots. Ellerman appears to assert that strict construction is warranted because our supreme court abolished common law governmental immunity in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 29, 115 N.W.2d 618 (1962). Therefore, adherence to Holytz mandates that we not extend the definition of "highway" to include a public parking lot. Ellerman is simply wrong.

¶ 13. Governmental entities have a nondelegable duty to maintain certain structures traveled on by the public, including highways and their appurtenances. The purpose of Wis. Stat. § 81.15 is to prevent an "unreasonable and unmanageable" burden from being imposed upon municipalities with regard to winter clean up of those structures. See Sanem v. Home Ins. Co., 119 Wis. 2d 530, 540, 350 N.W.2d 89 (1984). In recognition of limited governmental resources and harsh Wisconsin winters, the legislature has provided municipalities with immunity from their nondelegable duty to maintain "highways" and "bridges" for up to three weeks. Thus, § 81.15 is an attempt to strike a balance between the expectations of the public that the government will provide for the upkeep of such structures and the economic infeasibility of requiring municipalities to act as insurers every time snow falls and ice forms.

¶ 14. In keeping with this legislative intent to create a balance between public expectations, the nature of Wisconsin winters and the limited financial resources of governmental entities, as early as 1872, the supreme court determined that Wis. Stat. § 81.15 applied not only to the traveled part of the highway but also to the area "so connected with [the highway] as to affect the safety or convenience of those using the traveled path." Wheeler, 30 Wis. at 403 (emphasis omitted); see also Morris, 219 Wis. 2d at 561. Courts have continued to uphold this public policy over the years by concluding that governmental entities are entitled to immunity pursuant to § 81.15 for sidewalks, Webster, 81 Wis. 2d at 339; shoulders of the highway, Morris, 219 Wis. 2d at 546; and for roadways, Wheeler, 30 Wis. at 394, 396-97.

¶ 15. Parking lots serve dual purposes — they are mixed-use facilities, serving both pedestrian and vehicular traffic. A parking lot serves not only as a place to park, but also as a roadway to allow vehicular traffic to drive upon and park. It also serves as a sidewalk in the sense that once the vehicle is parked the individual becomes a pedestrian. The public expects its taxes to be used to upkeep and maintain public parking lots in the same manner as it would expect sidewalks, shoulders of the highway and roadways to be maintained. We are therefore convinced that public policy supports providing governmental entities with the three-week window to complete the task of cleaning up natural accumulations of snow in a public parking lot.

¶ 16. Ellerman also cites to Henderson as evidence of the trend that the court has strictly construed ■ Wis. Stat. § 81.15. Ellerman's interpretation oí Henderson is flawed.

¶ 17. The issue in Henderson was whether Wis. Stat. § 81.15 applied to a stairway connecting two sidewalks. Henderson, 198 Wis. 2d at 750-51. There, an inmate sued Milwaukee County as a result of injuries sustained when the inmate fell while going down a concrete stairway connecting sidewalks located on the grounds of the Milwaukee County House of Correction. Id. at 749. The concrete steps were located in between two sidewalks that lead to two buildings on the grounds. Id.

¶ 18. While we acknowledged that Wis. Stat. § 81.15 applied to sidewalks, we concluded that it did not apply to a stairway connecting two sidewalks. Henderson, 198 Wis. 2d at 749-52. We reached this conclusion not because we determined that § 81.15 must be given a narrow construction, as Ellerman would have us believe, but rather because a stairway connecting two sidewalks that are not used "for the purposes of vehicular travel" simply is not in any way connected to a highway or its appurtenances. See Wheeler, 30 Wis. at 403 (concluding that the governmental entity was not responsible for an injury sustained as a result of an obstruction not so connected with the traveled part of a highway "so as to affect the safety or convenience of those using the traveled path"); Wis. Stat. § 340.01(22). A public parking lot, on the other hand, functions as both a roadway and a sidewalk, serving both pedestrian and vehicular traffic. We therefore reject Ellerman's contention that Henderson is in some way relevant. We affirm.

By the Court. — Judgment affirmed.

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