author: NETTESHEIM, J.

text:
    Wieting Funeral Home of Chilton, Inc., Plaintiff-Appellant, v. Meridian Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 04-0461.

      Submitted on briefs September 23, 2004.

    Decided October 13, 2004.

    2004 WI App 218
    (Also reported in 690 N.W.2d 442.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Patrick J. Coffey, of Menu, Teetaert & Beisenstein, Ltd. of Appleton.
    * On behalf of the defendant-respondent,the cause was submitted on the brief of Rebecca Leair, of Baxter, O'Meara, Leair & Colon, S.C. of Milwaukee.

    Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 3-8-2005.

   NETTESHEIM, J.

¶ 1. Meridian Mutual Insurance Company paid a portion of á property insurance claim made by its insured, Wieting Funeral Home of Chilton, Inc. (Wieting), but refused to pay the balance of the claim. The lead issue on appeal is whether Meridian's payments served to toll the statute of limitations on Wieting's present action seeking to collect on the balance of the claim. At summary judgment, the trial court ruled that Wieting's action was barred by the statute of limitations set forth in Wis. Stat. § 631.83(1) (2001-02). We uphold this ruling. We also reject Wieting's alternative arguments that Meridian is es-topped from asserting a statute of limitations defense because of ongoing negotiations with Wieting and that the statute was further tolled because the parties agreed to the appraisal procedure under § 631.83(5). We affirm the judgment dismissing Wieting's complaint.

BACKGROUND

¶ 2. The facts underlying the issues on appeal are undisputed. On May 12, 2000, Wieting's funeral home sustained extensive property damage as the result of a storm passing through the Chilton, Wisconsin area. At the time of the damage, the Wieting property was insured by Meridian under a business owners policy. Wieting filed a claim with Meridian for coverage of its damages. The Meridian policy gave Wieting two years "after the date on which the direct physical loss or damage occurred" to sue for coverage.

¶ 3. Over the course of the following year, from May 12, 2000, through May 14, 2001, Meridian made payments to Wieting for a portion of Wieting's claim. However, Meridian determined that the structural damage to the roof of the funeral home was not caused by the storm, but rather by "wear and tear." Accordingly, Meridian denied this portion of the claim, notifying Wieting on May 14, 2001, that certain damage to "the EPDM roof portion" was not covered "due to the lack of any hail or wind damage." Meridian explained that its investigation of the EPDM-covered roof had shown the claimed damage to be caused by "wear and tear," which is excluded under the terms of the policy. Meridian did, however, send Wieting a settlement check in the amount of $11,817.07 for damages sustained to the shingled portion of the roof.

¶ 4. Thereafter, the parties continued to communicate about their dispute and possible ways to resolve it. However, in all of these discussions, Meridian continued to deny the claim and repeatedly reserved its rights and defenses under the policy. These discussions proved fruitless, and on January 23, 2003, Meridian offered Wieting $2500 as "nuisance value" in settlement of the roof claim. Wieting rejected the settlement offer.

¶ 5. On April 11, 2003, Wieting filed the instant action against Meridian alleging a breach of insurance contract due to Meridian's denial of the roof damage claim. Meridian answered, denying the allegations and asserting that Wieting's action was barred by the one-year statute of limitations set forth in Wis. Stat. § 631.83 and, to the extent the policy extended the statute of limitations to two years, by that additional period of limitation.

¶ 6. Meridian followed with a motion for summary judgment seeking dismissal based on its statute of limitations defense. Following a hearing on December 23, 2003, the trial court granted Meridian's motion and dismissed Wieting's complaint. Wieting appeals. We will recite additional facts as we discuss each issue.

DISCUSSION

¶ 7. We review a grant of summary judgment de novo by applying the same methodology as the circuit court. Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 17, 263 Wis. 2d 207, 665 N.W.2d 181. Under Wis. Stat. § 802.08(2), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Application of Wis. Stat. § 631.83

¶ 8. We turn first to the threshold issue of the statute of limitations governing Wieting's claim. Wisconsin Stat. § 631.83 provides in relevant part:

Limitation of actions. (1) STATUTORY periods op limitation. (a) Fire insurance. An action on a fire insurance policy must be commenced within 12 months after the inception of the loss. This rule also applies to riders or endorsements attached to a fire insurance policy covering loss or damage to property or to the use of or income from property from any cause, and to separate windstorm or hail insurance policies.
(2) General law applicable to limitation of actions. Except for the prescription of time periods under sub.
(1) or elsewhere in chs. 600 to 646 and 655, the general law applicable to limitation of actions as modified by ch. 893 applies to actions on insurance policies.

¶ 9. Neither party disputes that Wieting's claim is governed by the twelve-month statute of limitations set out in Wis. Stat. § 631.83(1), which is extended to two years under the terms of the Meridian policy. However, Wieting argues that subsec. (2) of the statute serves to invoke the provisions of Wis. Stat. ch. 893, which permits tolling of a statute of limitations under certain circumstances. In particular, Wieting relies on Wis. Stat. § 893.12, which provides:

Advance payment of damages; limitation extended. The period fixed for the limitation for the commencement of actions, if a payment is made as described in s. 885.285(1), shall be either the period of time remaining under the original statute of limitations or 3 years from the date of the last payment made under s. 885.285(1), whichever is greater.

¶ 10. Because Meridian made partial payments on its claim, Wieting argues that the limitations period for the instant action should be measured from the date of Meridian's last payment, making Wieting's action timely pursuant to Wis. Stat. § 893.12. Meridian disagrees, contending that Wis. Stat. § 631.83(2) clearly and unambiguously bars the application of Wis. Stat. ch. 893 to a fire insurance policy.

¶ 11. The determination of whether Wis. Stat. § 631.83(2) precludes the application of Wis. Stat. ch. 893 to extend the time limitation for the filing of Wieting's claim raises a question of statutory interpretation that we review de novo. See State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496 (statutory interpretation reviewed de novo). Statutory construction has the purpose of assisting the court to discern and apply legislative intent. Fox, 263 Wis. 2d 207, ¶ 19. If statutory language is unambiguous, we apply the statute using the common and generally accepted meanings of the terms. Id.

¶ 12. We agree with Meridian that Wis. Stat. § 631.83(2) clearly and unambiguously excepts the time limitations for fire insurance claims from the application of Wis. Stat. § 893.12. This subsection reads, "Except for the prescription of time periods under sub. (1) or elsewhere in [Wis. Stat.] chs. 600 to 646 and 655, the general law applicable to limitation of actions as modified by ch. 893 applies to actions on insurance policies." Sec. 631.83(2) (emphasis added). Thus, the legislature has decreed Wis. Stat. ch. 893 is applicable to actions on insurance policies, but not to actions on fire insurance policies, actions under chs. 600 to 646, and actions under ch. 655.

¶ 13. Wieting, however, cites to Landis v. Physicians Insurance Co., 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, in support of its interpretation of the statute. There, the supreme court looked to Wis. Stat. ch. 893 in ruling that the statute of limitations was tolled in a medical malpractice action under Wis. Stat. ch. 655. Landis, 245 Wis. 2d 1, ¶¶ 12-62. Since Wis. Stat. § 631.83(2) excepts actions under ch. 655, as well as actions under fire insurance policies, and since this did not deter the Landis court from looking to ch. 893, Wieting reasons that we are obliged to do the same in this case. We reject this argument for two reasons.

¶ 14. First, we observe that the supreme court's opinion in Landis does not address Wis. Stat. § 631.83 nor the potential consequences of that statute on the outcome of the case. Presumably, that is because the parties' briefs in Landis did not address the statute. We, of course, recognize our duty to abide by decisions of our supreme court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case."). But that obligation does not hold where an entirely new and potentially dispositive issue is raised in a subsequent case. In Fulton Foundation v. Department of Taxation, 13 Wis. 2d 1, 108 N.W.2d 312 (1961), the supreme court addressed whether the department of taxation had standing to challenge the constitutionality of a tax law. Id. at 9-10. The court acknowledged that it had addressed the department's constitutional challenge to a tax law in a prior case. However, the court held that the prior case was not binding precedent. Id. at 10 ("Because the right of the department to raise the issue of constitutionality was not therein challenged, such case has no efficacy as a precedent with respect to such question."). Similarly, in State ex rel. City of Sheboygan v. County Board of Supervisors, 194 Wis. 456, 216 N.W. 144 (1927), the supreme court said that it was not bound by a prior decision tacitly recognizing a municipality's standing to challenge a tax. Id. at 459 ("The relators cannot rely upon the fact that similar actions have been maintained in which the right of the municipality to prosecute such actions was not questioned, because the question now under consideration was neither raised nor considered in those cases. Such decisions are not authority either way upon this question."). The court of appeals has held likewise. In Silver Lake Sanitary District v. Wisconsin Department of Natural Resources, 2000 WI App 19, ¶ 13, 232 Wis. 2d 217, 607 N.W.2d 50, the court said, "It is blackletter law that an opinion does not establish binding precedent for an issue if that issue was neither contested nor decided." Therefore Landis does not directly govern this case.

¶ 15. Second, although Wis. Stat. § 631.83(2) excepts medical malpractice actions under Wis. Stat. ch. 655 from the provisions of Wis. Stat. ch. 893, ch. 893 nonetheless expressly sets out the statute of limitations applicable to medical malpractice actions. See Wis. Stat. § 893.55(1), (2) and (3). That incongruity presumably explains why the Landis court addressed the interplay between chs. 655 and 893. In the instant case, however, ch. 893 does not expressly speak to any statute of limitations or tolling provisions regarding fire insurance policies. Instead, Wis. Stat. § 893.12, the "[advance payment[s]" tolling statute relied upon by Wiet-ing, is a general statute that applies to all personal injury and property damage actions. On the other hand, § 631.83(2) speaks specifically to fire insurance policies and clearly excepts such policies from the provisions of ch. 893. When two statutes relate to the same subject matter, the specific statute controls over the general statute. Estate of Gonwa v. DHFS, 2003 WI App 152, ¶ 32, 265 Wis. 2d 913, 668 N.W.2d 122.

¶ 16. We uphold the trial court's ruling that the one-year limitation period set out in Wis. Stat. § 631.83(1), as extended to two years under the parties' insurance contract, bars Wieting's action.

Estoppel and Wis. Stat. § 631.83(5)

¶ 17. Wieting raises two alternative arguments: (1) Meridian is estopped from asserting its statute of limitations defense, and (2) the statute of limitations was tolled because the parties agreed to the appraisal procedure contemplated by Wis. Stat. § 631.83(5).

¶ 18. Both of these arguments rest on the following undisputed history. On May 14, 2001, a year before the limitation period expired, Meridian's adjuster, Ron Pritchett, denied Wieting's claim for the roof damage. In response, Wieting called Pritchett registering its disagreement with Meridian's denial and advising that Wieting had hired its own expert to inspect the roof. Pritchett responded with a letter of May 16, 2001, confirming Wieting's call and stating that if Wieting's expert reached a different conclusion, Wieting should arrange a meeting of the parties' experts at the site for further inspection and to "discuss what issues concerning this claim they agree or disagree on and why." Importantly, Pritchett's letter included the following:

As stated, with respect to the above claim, we have paid what is known is owed as per the policy's conditions; and remain committed to determining a fair conclusion to the above claim as per the policy's provisions and conditions.
Nothing stated in or implied by this letter, nor any action heretofore taken, declined or deferred in this matter by Meridian Insurance has been intended nor should be taken as a waiver of any potential right, claim or defense under this policy. Meridian Insurance continues to reserve without qualification or limitation all rights, claims or defenses available to it under this policy.

¶ 19. The record is not clear whether the experts actually met at the site for the mutual inspection and discussion anticipated by Pritchett's letter. However, some seven months later, on December 19,2001, Pritch-ett wrote to Attorney Michelle Birschbach, who now represented Wieting. In this letter, Pritchett referred Birschbach to his previous letters denying Wieting's claim. In addition, Pritchett stated that he had provided Wieting the telephone number of Meridian's expert, Jim Clark, but Meridian had not heard back from Wieting. Pritchett's letter further stated, "We stand by our denial letter of May 14, 2001." The letter concluded with the same reservation of rights and defenses under the policy as stated in Pritchett's letter of May 16, which we have quoted above.

¶ 20. On April 2, 2002, still within the two-year statute of limitations, Pritchett wrote to Attorney Patrick Coffey who had since taken over as Wieting's attorney. This letter documented a conversation between the two earlier the same day in which the parties agreed to have their "experts meet to discuss the differences in their findings." Pritchett instructed Coffey to contact Meridian’s expert, Jim Clark, and to arrange a meeting of the experts. Once again, this letter stated that Meridian was standing by its previous denial of Wieting's claim and concluded with the same reservation of rights and defenses under the policy.

¶ 21. The limitations period expired on May 12, 2002. Thereafter the parties continued to communicate; however, Pritchett's participation was limited to responding to Wieting's inquiries. Ultimately, Meridian offered to settle Wieting's claim for a "nuisance value" of $2500. Wieting rejected the offer.

Estoppel

¶ 22. Based on the above history, Wieting argues that Meridian is estopped from asserting its statute of limitations defense. Wieting contends that Meridian's conduct induced it to engage in further negotiations and to defer commencing the instant action until after the limitations period had expired.

¶ 23. The test of whether a party should be es-topped from asserting the statute of limitations is whether the conduct and representations of the party against whom estoppel is sought were so unfair and misleading as to outbalance the public's interest in setting a limitation on bringing actions. Johnson v. Johnson, 179 Wis. 2d 574, 582, 508 N.W.2d 19 (Ct. App. 1993). In addition, equitable estoppel requires that the party asserting the statute of limitations engage in fraud or inequitable conduct and that the aggrieved party failed to commence an action within the statutory period because of reliance on the wrongful conduct. Id. See also State ex rel. Susedik v. Knutson, 52 Wis. 2d 593, 596-97, 191 N.W.2d 23 (1971). Finally, proof of estoppel must be clear, satisfactory and convincing and is not to rest on mere inference or conjecture. Johnson, 179 Wis. 2d at 583.

¶ 24. As noted by the trial court, Johnson bears strong similarities to this case. There, the injured plaintiff claimed that the statute of limitations should be tolled because: (1) the insurer had represented that the plaintiff had "plenty of time" to file a lawsuit, (2) the insurer continued to deal with the plaintiff up to and beyond the limitations period; and (3) the insurer had sent the plaintiff a medical authorization form to sign just prior to the running of the limitations period. Id. at 582-83.

¶ 25. In rejecting the argument, the court of appeals first clarified that the only conduct relevant to the inquiry was that which occurred during the limitations period, not after. Id. at 583. As to the merits, the court observed:

Underlying Donald's argument is the notion that Allstate had a duty to advise him of the proper statute of limitations. However, litigants must inform themselves of applicable legal requirements and procedures, and they cannot rely solely on their perception of how to commence an action. "Ignorance of one's rights does not suspend the operation of a statute of limitations."

Id. at 584 (citations omitted). In addition, the court observed:

[T]here is nothing in the record that would indicate that-such discussions were anything but good faith negotiations toward an amicable settlement. There is nothing fraudulent or inequitable about engaging in settlement discussions to avoid litigation. In fact, we should encourage, not discourage, parties to negotiate a settlement instead of litigating their disputes.

Id. at 585 (citations omitted).

¶ 26. Here, in accord with Johnson, we limit our consideration of Meridian's conduct to that which occurred during the period of limitations. And, as in Johnson, we see nothing in Meridian's conduct indicating a lack of good faith, fraud, or inequitable behavior. We agree with the trial court's determination that "[Meridian] did not engage in any behavior that was unfair or misleading, and it did not engage in any misrepresentations. It did not engage in any behavior contrary to public policy." From the very outset, Meridian was, in the trial court's words, "up front" with its denial of Wieting's roof damage claim. And while offering to reconsider if adequate proof to the contrary was proffered, Meridian never wavered from its stance denying the claim. Each and every letter from Pritchett to Wieting or its representatives reconfirmed that Meridian was standing by its denial letter of May 14, 2001. In addition, each and every letter expressly reserved Meridian's rights and defenses under the policy. Given this repeated warning, we are hard pressed to say that Meridian engaged in fraudulent, inequitable, unfair or misleading conduct sufficient to outweigh the public interest served by the law of statute of limitations.

¶ 27. For the same reasons, we reject Wieting's claim that it reasonably relied to its detriment on Meridian's conduct. See Nugent v. Slaght, 2001 WI App 282, ¶ 29, 249 Wis. 2d 220, 638 N.W.2d 594. Although it was not Meridian's job to give Wieting legal advice, Meridian's staunch and persistent denial of Wieting's claim, coupled with Meridian's repeated invocation of its rights and defenses under the policy, served to put Wieting on fair notice that the limitations clock was ticking.

¶ 28. We uphold the trial court's ruling that Meridian was not estopped from asserting its statute of limitations defense.

Appraisal Agreement Under Wis. Stat. § 631.83(5)

¶ 29. Based on this same history of negotiations, Wieting contends that the statute of limitations was tolled pursuant to Wis. Stat. § 631.83(5). This statute sets out three circumstances which produce a tolling of the statute of limitations: (1) the parties entered into an arbitration procedure prescribed by the insurance policy, (2) the parties entered into an appraisal procedure prescribed by the insurance policy, or (3) the parties otherwise agreed to an appraisal procedure. Id.

¶ 30. The first two procedures were not used by the parties in this case. They did not invoke any arbitration provision in the Meridian policy, assuming the policy so provided. Nor did they invoke the appraisal procedure set out in the policy. That process required one of the parties to make a written demand for an appraisal of the loss, each party to then select a "competent and impartial appraiser," and the appraisers, in turn, to select an "umpire." In the event the parties' appraisers disagreed on the amount of the loss, the dispute would be submitted to the umpire and "[a] decision agreed to by any of the two will be binding." Finally, each party would be responsible for its own costs and fees.

¶ 31. Instead, Wieting contends that the parties utilized the third procedure under the statute — "an appraisal... procedure .. . agreed to by the parties." See Wis. Stat. § 631.83(5). We disagree that the ongoing discussions between the parties served to achieve an "agreement" as envisioned by § 631.83(5). Admittedly, the parties started down this road when Pritchett indicated in his May 16, 2001 letter, in response to Wieting's telephone call, that Wieting would be hiring an expert to inspect the roof and, if the expert disputed the determination made by Meridian's expert, the parties would meet to further discuss the issue. But that is as far as the parties' so-called "agreement" went. Pritchett's next letter of December 19, 2001, to Wieting's then attorney complained that Wieting had not contacted Meridian's expert. Pritchett's next letter of April 2, 2002, the final letter within the limitations period, to Wieting's new attorney merely confirmed an arrangement similar to that set out in Pritchett's May 16 letter — the parties' experts would meet and "discuss the differences in their findings."

¶ 32. Wisconsin Stat. § 631.83(5) envisions an "agreement" between the parties to engage in an appraisal procedure. We first observe that the arrangement struck by the parties never used the term "appraisal," and the experts were not denominated as "appraisers." Therefore, we harbor some doubt as to whether the parties triggered the statute. But even assuming that the parties envisioned their experts as appraisers, we conclude that their efforts never ripened into an agreement as envisioned by the statute. Thé statute does not state the degree of formality which must accompany an appraisal agreement. However, the other alternatives documented in the statute — an appraisal or arbitration procedure prescribed by the policy —connote a degree of formality and structure. As we have documented, the appraisal procedure set out in the insurance policy contemplates a formal demand for an appraisal, a prescribed methodology for selecting an umpire and resolving any disputes between the parties' experts, and a provision for the payment of fees and costs. Similarly, arbitration, while not a highly regulated procedure, is nonetheless governed by some degree of formality with certain rules and structure. See generally Wis. Stat. ch. 788.

¶ 33. From this, we conclude that an "agreement" by the parties to engage in an appraisal procedure under Wis. Stat. § 631.83(5) requires something more than a mere agreement to meet and discuss a dispute between the parties. If that were the law then most negotiations between an insured and án insurer over a disputed claim would serve to toll the statute of limitations. Given the public interest in setting a limitation on bringing lawsuits, Johnson, 179 Wis. 2d at 582, we decline to elevate such loose, uncertain and tentative "agreéments to possibly agree" to the level of the formal agreement contemplated by § 631.83(5).

¶ 34. We conclude that the parties did not reach an agreement invoking the appraisal procedures contemplated by Wis. Stat. § 631.83(5) so as to toll the applicable statute of limitations.

CONCLUSION

¶ 35. We hold that Wis. Stat. § 631.83(1) and (2) clearly and unambiguously except actions on fire insurance policies from the tolling provisions set out in Wis. Stat. ch. 893. We further hold that Meridian was not estopped from asserting its statute of limitations defense. Finally, we hold that the parties did not agree to invoke the appraisal procedures under § 631.83(5).

By the Court. — Judgment affirmed.

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

       The term "fire insurance" covers indemnity insurance for losses to property caused by many perils other than fire. Villa Clement, Inc. v. National Union Fire Ins. Co., 120 Wis. 2d 140, 145, 353 N.W.2d 369 (Ct. App. 1984).

       Wisconsin Stat. § 885.285 states, in relevant part:
      (3) Any settlement or advance payment under sub. (1) shall be credited against any final settlement or judgment between the parties ....
      (4) The period fixed for the limitation for the commencement of actions shall be as provided by s. 893.12.

       In an attempt to get around the clear meaning of Wis. Stat. § 631.83(2), Wieting relies on the legislature's use of the phrases "law applicable to limitation of actions" and "time periods." Wieting argues:
      That portion of the statute makes a distinction between the "law applicable to limitations of actions" and the "time periods." Clearly, the legislature allowed insurance companies, issuing fire insur-anee policies, to limit the time periods from the six year, contract statute of limitations, outlined in Wisconsin Statute § 893.43, to 12 months. Any other issues relating to "the law applicable to the limitations of actions" should be analyzed in light of Chapter 893.
      Apart from not understanding this argument, we also reject Wieting's premise that the two phrases allow for the introduction of the tolling provisions of Wis. Stat. ch. 893. As we have indicated, the statutory language and scheme of Wis. Stat. § 631.83(1) and (2) are clear and unambiguous: pursuant to subsec. (2), the provisions of ch. 893 apply to actions on insurance policies except fire insurance policies and actions under Wis. Stat. chs. 600 to 646 and 655.

       We have examined the briefs in Landis v. Physicians Insurance Co., 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893.

       In further support of its ruling, the trial court relied on Gurney v. Heritage Mutual Insurance Co., 188 Wis. 2d 68, 523 N.W.2d 193 (Ct. App. 1994). There, the court of appeals held that the "[ajdvance payment" tolling provisions of Wis. Stat. § 893.12 did not toll the statute of limitations where the tortfeasor's insurer had made partial payments to the plaintiff under the medical pay provisions of a liability policy. Gurney, 188 Wis. 2d at 74. The court reasoned that because the medical payment provisions of the policy were unrelated to the tortfeasor's alleged fault or liability, the payments did not operate to extend or toll the statute of limitations. Id.

      Meridian likens this ease to Gurney, noting that its obligation to pay Wieting is also not based on fault. Wieting argues that Gurney does not govern since this is a "first party" case involving the two parties in privity to the insurance contract whereas Gurney was a "third party" case where the injured plaintiff, not a party to the insurance contract, was the recipient of the advanced payments.
      While the parties' debate about Gurney presents an interesting question, it also becomes an academic one in light of our threshold ruling that Wieting's claim is barred by the clear and unambiguous language of Wis. Stat. § 631.83(1) and (2).

       One of Wieting's arguments is that, "Once the insurance company was adequately protected from a stale or fraudulent claim, it would be against public policy to allow that company to use the statute of limitations as a sword, rather than as a shield."

       WISCONSIN Stat. § 631.83(5) states:
      Tolling of Period of Limitation. The period of limitation is tolled during the period in which the parties conducted an appraisal or arbitration procedure prescribed by the insurance policy or by law or agreed to by the parties.

       The parties do not point us to any arbitration provision in the Meridian policy.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Lynn Morrissey, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Lynn Morrissey, Respondent.
    Supreme Court

      No. 04-1869-D.

      Decided January 14, 2005.

    2005 WI 2
    (Also reported in 691 N.W.2d 634.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee, John A. Fiorenza, that Attorney Lynn Morrissey's license to practice law in Wisconsin be suspended for 60 days for professional misconduct. The misconduct at issue consisted of Attorney Morrissey's handling of two client matters. In the first case the misconduct involved representing that a satisfaction of lien would not be filed until payment of the lien amount was mailed to the person entitled to the money and by receiving and filing the satisfaction of lien prior to remitting payment. In the second case the misconduct involved failing to file acceptable findings of fact, conclusions of law and a judgment in a divorce action with reasonable promptness. The referee recommended that Attorney Morrissey's license be suspended for 60 days.

¶ 2. We determine that the seriousness of Attorney Morrissey's professional misconduct warrants a suspension of her license to practice law for 60 days. We further agree with the referee that Attorney Morrissey should pay the costs of this proceeding.

¶ 3. Attorney Morrissey was admitted to practice law in Wisconsin in 1995. On October 19, 2004, her license to practice law was temporarily suspended due to her failure to respond or cooperate with the Office of Lawyer Regulation's (OLR) investigation into griev-anees that had been filed against her. Those grievances do not involve the conduct at issue here. Her license remains suspended.

¶ 4. The complaint filed by the OLR in this action alleged that in March of 2001 Attorney Morrissey was retained to represent a client in the sale of real estate in Washington County. The real estate was subject to division in a Colorado divorce action. The divorce order provided that the client's former wife had a lien of $60,000 and a 50 percent interest in any value in excess of $100,000 in real estate the couple owned in Wisconsin.

¶ 5. Attorney Morrissey wrote to the client's former wife arranging for the closing and the sale of the real estate. In June 2001 Attorney Morrissey wrote to the former wife's attorney proposing that Attorney Morrissey prepare a satisfaction of lien for $60,000. Attorney Morrissey advised the other attorney that after he obtained his client's signature on the satisfaction of lien he should forward it to the title company to hold until the closing, at which time the title company could mail his client her check.

¶ 6. In July 2001 Attorney Morrissey sent the draft satisfaction of lien to her client's former wife and requested she sign it and return it. Attorney Morrissey assured the client's former wife that the satisfaction would not he recorded until the $60,000 check had been sent. The client's former wife signed the satisfaction and sent it to Attorney Morrissey in reliance on the representation that the satisfaction would not be filed until payment had been made.

¶ 7. Attorney Morrissey recorded the satisfaction on April 16, 2002. On May 16, 2002, Attorney Morrissey's client signed a land contract for the sale of the property. On June 18, 2002, Attorney Morrissey's client signed a closing statement which indicated a disbursement to him of $92,580.39 and no disbursement to his former wife. The land contract was recorded on July 3, 2002. On July 16, 2002, the bank disbursed proceeds of the sale by way of a check to Attorney Morrissey's law office in the amount of $2,807.20 and a check to Attorney Morrissey's client in the amount of $89,773.19.

¶ 8. On August 6, 2002, the attorney representing Attorney Morrissey's client's former wife requested a copy of the closing statement, which Attorney Morris-sey provided. On March 5, 2003, the attorney for the client's former wife wrote to Attorney Morrissey requesting the $60,000.

¶ 9. On October 16, 2003, the OLR requested Attorney Morrissey's response to a grievance filed by her client's former wife. Attorney Morrissey failed to respond to that request and two other requests.

¶ 10. The OLR's complaint also alleged that Attorney Morrissey engaged in professional misconduct with respect to her handling of a divorce action for a client. The second client retained Attorney Morrissey on April 8, 2002. The final hearing was held in the divorce on May 5, 2003. At the time of the hearing the court directed Attorney Morrissey to file findings of fact, conclusions of law and a judgment. The findings filed were deemed insufficient and on July 15, 2003, a family court commissioner clerk faxed Attorney Morris-sey a list of provisions for inclusion in the findings. On September 18, 2003, Attorney Morrissey was again faxed a list of mandatory provisions to be included in the findings. On November 1, 2003, because Attorney Morrissey had failed to file the findings, the clerk forwarded the file to the court to calendar an order to show cause hearing.

¶ 11. On November 5, 2003, the guardian ad litem in the case wrote a letter to the court, with a copy to Attorney Morrissey, regarding Attorney Morrissey's failure to have signed findings, conclusions and a judgment on file. In her letter the guardian ad litem said the failure to file these documents was exacerbating disputes between the parties.

¶ 12. The trial court set the order to show cause hearing for December 1, 2003. Attorney Morrissey failed to appear. The court continued the hearing to December 12, 2003, and had Attorney Morrissey served with notice of the hearing. Although Attorney Morris-sey again failed to appear at the December 12 hearing, she did call the court to advise she was ill and could not attend. The court continued the hearing until December 22, 2003.

¶ 13. Attorney Morrissey submitted the completed findings on December 22, 2003, more than seven months after the final divorce hearing and five months after the clerk had first faxed her a list of the missing provisions. The court signed the findings, conclusion and judgment on January 7, 2004.

¶ 14. In early January 2004 the OLR requested Attorney Morrissey to respond to questions relating to the second client's grievance. Attorney Morrissey failed to respond. In March of 2004, after ordering Attorney Morrissey to show cause in the matter and after her failure to do so, this court temporarily suspended her license. Her license was subsequently reinstated after she belatedly filed a written response to the second client's grievance. As noted above, her license to practice law was again temporarily suspended on October 19, 2004, when she failed to respond to the OLR's inquiries about other grievances.

¶ 15. Attorney Morrissey did not file an answer to the OLR's complaint or otherwise make any appearance in the case. The OLR filed a notice of motion and motion for default judgment. Attorney Morrissey filed no response to the motion. On October 12, 2004, the referee granted the OLR's motion for default judgment and issued a decision in the case.

¶ 16. The referee found that by representing to the first client's former wife that the satisfaction of lien would not be filed until payment of the lien amount was mailed and by receiving and filing the satisfaction of lien prior to remitting payment and by failing to include or provide for payment of the lien from the proceeds of the sale Attorney Morrissey engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, in violation of SCR 20:8.4(c).

¶ 17. The referee also found that by failing to file acceptable findings of fact, conclusions of law and a judgment in the second client's divorce with reasonable promptness, Attorney Morrissey violated SCR 20:1.3. In addition, the referee found that by willfully failing to respond to the OLR's request for written responses to the two grievances, Attorney Morrissey violated SCR 22.03(2), SCR 22.03(6) and SCR 20:8.4(f). The referee recommended that Attorney Morrissey's license be suspended for 60 days and that she be assessed the costs of the proceeding.

¶ 18. A referee's findings of fact on a disciplinary matter will not be set aside unless they are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Carroll, 2000 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. Since the referee's findings of fact have not been shown to be clearly erroneous, we adopt them.

¶ 19. We also conclude, as did the referee, that the seriousness of Attorney Morrissey's misconduct warrants the suspension of her license to practice law in Wisconsin for 60 days. Finally, we agree with the referee that Attorney Morrissey should be required to pay the costs of this proceeding.

¶ 20. IT IS ORDERED that the license of Attorney Lynn Morrissey to practice law in Wisconsin is suspended for 60 days, effective the date of this order.

¶ 21. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Lynn Morrissey pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid with the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Attorney Lynn Morrissey to practice law in Wisconsin shall remain suspended until further order of the court.

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 20:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 22.03(2) provides:
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.

       SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."


author: N. PATRICK CROOKS, J. PATIENCE DRAKE ROGGENSACK, J. JON E WILCOX, J.

text:
    Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem, Plaintiff-Appellant, v. Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company, Defendants-Respondents.
    Supreme Court

      No. 03-2487-FT.

      Oral argument October 26, 2004.

    Decided January 19, 2005.

    2005 WI 4
    (Also reported in 691 N.W.2d 334.)

      For the plaintiff-appellant there were briefs by J. Michael Riley and Axley Brynelson, LLP, Madison, and oral argument by John M. Riley.

    For the defendants-respondents there was a brief by Bradway A. Liddle, Sarah A. Zylstra and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Sarah A. Zylstra.

    An amicus curiae brief was filed by Patricia Sommer and Otjen, Van Ert, Lieb & Weir, S.C., Madison, on behalf of Wisconsin Insurance Alliance.
   N. PATRICK CROOKS, J.

¶ 1. This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-2002). Benjamin Atkins (Atkins) appealed from an order of the circuit court, which granted summary judgment in favor of Swimwest Family Fitness Center a/k/a Swim-west School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company (Swimwest). Atkins filed suit for the wrongful death of his mother, Dr. Charis Wilson (Wilson), who drowned while using Swimwest's lap pool. The circuit court held that the guest registration and waiver form signed by Wilson constituted a valid exculpatory provision, releasing Swimwest from liability.

¶ 2. We conclude that the exculpatory language in Swimwest's form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word "fault" on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for "fault," and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

I

¶ 3. Swimwest is mainly an instructional swimming facility located in Madison, Wisconsin. It is equipped with a lap pool that is open to both members and visitors. On May 3, 2001, Wilson, a local physician, visited Swimwest as part of a physical therapy and rehabilitation program. Upon entering the facility, Wilson was assisted at the front desk by Swimwest employee Arika Kleinert (Kleinert). Kleinert informed Wilson that because she was not a member of Swim-west, she was required to fill out a guest registration card and pay a fee before swimming.

¶ 4. Kleinert presented Wilson with the guest registration card. The form was preprinted on a five and one-half inch by five and one-half inch card that also contained a standardized "Waiver Release Statement." This statement appeared below the "Guest Registration," which requested the visitor's name, address, phone, reason for visit, and interest in membership. The entire card was printed in capital letters with the same size, font, and color. The waiver language printed on the card, following the registration information requested, is reproduced below:

WAIVER RELEASE STATEMENT
I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.

¶ 5. The guest registration and waiver card had just one signature and date line that appeared at the end of the "Guest Registration" and the "Waiver Release Statement." Wilson completed the requested "Guest Registration" portion and signed at the bottom of the "Waiver Release Statement" without asking Kleinert any questions.

¶ 6. Before entering the pool, Wilson told Dan Kittelson, Aquatic Director of Swimwest, that she did not require assistance getting into the water. She was observed entering the pool by Karen Kittelson, part owner of Swimwest, and the lifeguard on duty. Karen Kittelson testified that she saw Wilson swimming the sidestroke up and down the length of the pool.

¶ 7. Soon after Wilson began swimming, another Swimwest employee, Elizabeth Proepper (Proepper), spotted Wilson lying motionless underwater near the bottom of the pool. Proepper alerted Karen Kittelson, who pulled Wilson from the pool and administered CPR. Wilson died at the hospital on May 4, 2001. An autopsy was performed, and drowning was listed as the official cause of death on the coroner's report.

¶ 8. Atkins, a minor and Wilson's only child, filed a wrongful death action against Swimwest through his guardian ad litem. Atkins' complaint alleged that Swim-west was negligent in the operation of the pool facility, particularly in the management and observation of the pool area, that procedures to safeguard against the risk of drowning were not followed, and that negligence of its employees caused Wilson's death.

¶ 9. The Dane County Circuit Court, the Honorable Michael N. Nowakowski presiding, granted Swimwest's summary judgment motion and dismissed Atkins' wrongful death action. The circuit court concluded that the form Wilson signed was sufficient to absolve Swimwest of any liability for Wilson's death. The court reached its conclusion after considering whether the exculpatory clause was in contravention of public policy.

¶ 10. Atkins appealed the circuit court decision. The court of appeals, Judges Charles E Dykman, Margaret J. Vergeront, and Paul B. Higginbotham, certified the appeal to this court to clarify Wisconsin law concerning the enforceability of exculpatory clauses in standard liability release forms.

II

¶ 11. This case involves review of whether the circuit court appropriately granted Swimwest's motion for summary judgment. In reviewing the grant of summary judgment, we apply the same methodology used by the circuit court in deciding the motion. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996); see Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994). Although the standard for our review is de novo, we benefit from the analysis of the circuit court. Yahnke v. Carson, 2000 WI 74, ¶ 10, 236 Wis. 2d 257, 613 N.W.2d 102. Wisconsin Stat. § 802.08(2) states, in relevant part, that the circuit court may appropriately grant summary judgment if evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 12. This case turns on the interpretation of Swimwest's guest registration and waiver form, and whether it relieves Swimwest of liability for harm caused by its negligence. Merten v. Nathan, 108 Wis. 2d 205, 210, 321 N.W.2d 173 (1982). Wisconsin case law does not favor such agreements. Richards, 181 Wis. 2d at 1015; Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991). While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81; Merten, 108 Wis. 2d at 210-11.

¶ 13. Generally, exculpatory clauses have been analyzed on principles of contract law, see Dobratz, 161 Wis. 2d 502; Arnold v. Shawano County Agr. Soc'y, 111 Wis. 2d 203, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987), and on public policy grounds. See Yauger, 206 Wis. 2d 76; Richards, 181 Wis. 2d 1007; Merten, 108 Wis. 2d 205; see generally, Restatement (Second) of Contracts, § 195 (1981). However, lately the contractual analysis has not been emphasized, as many of the factors previously reviewed on a contractual basis were reached in the more recent cases, like Richards and Yauger, on public policy grounds. Yauger, 206 Wis. 2d at 86. For a contractual inquiiy, we need only "look to the contract itself to consider its validity. Specifically, we examine the facts and circumstances of [the] agreement..." Arnold, 111 Wis. 2d at 211, to determine if it was broad enough to cover the activity at issue. If not, the analysis ends and the contract should be determined to be unenforceable in regard to such activity. If the language of the contract does cover the activity, as it does here, we then proceed to an analysis on public policy, which remains the "germane analysis" for exculpatory clauses. Yauger, 206 Wis. 2d at 86.

¶ 14. We generally define public policy as " 'that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.'" Merten, 108 Wis. 2d at 213 (quoting Higgins v. McFarland, 196 Va. 889, 86 S.E.2d 168, 172 (1955)). In such a review of exculpatory clauses, this court "attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement." Richards, 181 Wis. 2d at 1016. For guidance on the application of these public policy principles, we examine our two most recent cases considering exculpatory contracts in Wisconsin.

¶ 15. In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: "First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed." Yauger, 206 Wis. 2d at 84. Yauger involved a wrongful death action against the owner of a ski hill area. The claim, brought by the parents of a girl who fatally collided with the concrete base of a chair lift tower while skiing, alleged that the defendant negligently failed to pad the lift tower. The defendant filed for summary judgment, relying on the exculpatory provision contained in the family ski pass signed by the girl's father. The waiver read, in part: " 'There are certain inherent risks in skiing and that we agree to hold Hidden Valley Ski Area/Skiing Enterprises Inc. harmless on account of any injury incurred by me or my Family member on the Hidden Valley Ski Area premises.'" Id. at 79.

¶ 16. In applying the two factors, the court in Yauger held that the release was void as against public policy. First, this court held that the release was not clear because it failed to include language "expressly indicating Michael Yauger's intent to release Hidden Valley from its own negligence." Id. at 84. Without any mention of the word "negligence," and the ambiguity of the phrase "inherent risks of skiing," the court held that Yauger was not adequately informed of the rights he was waiving. In regard to the second factor, this court held that the form, in its entirety, did not fully communicate to Yauger its nature and significance, because it served the dual purposes of an application for a season pass and a release of liability. Id. at 87. Furthermore, the waiver was not conspicuous. It was one of five paragraphs on the form and did not require a separate signature. Id.

¶ 17. In Richards, the court adopted a slightly different approach to determining the enforceability of exculpatory contracts. Richards involved the wife of a truck driver signing a "Passenger Authorization" release form issued by her husband's employer. The form claimed to waive liability for "intentional,, reckless, and negligent conduct." She brought suit to recover for injuries she suffered while riding in her husband's truck as a passenger. We used a combination of factors to determine that the exculpatory language was contrary to public policy. Richards, 181 Wis. 2d at 1017. The first factor was that the contract served two purposes, neither of which was clearly identified or distinguished. Second, the court held that the release was broad and all-inclusive. Finally, there was little or no opportunity to negotiate or bargain over the contract. Id. at 1011.

¶ 18. Applying the factors from Yauger and Richards, we hold that Swimwest's exculpatory clause is in violation of public policy. First, this exculpatory waiver, which uses the word "fault," is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86; Richards, 181 Wis. 2d at 1017-18. Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver's nature and significance. Yauger, 206 Wis. 2d at 86-87. Third, there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019. Under this framework, the waiver in question is unenforceable as against public policy.

¶ 19. In addressing the first factor, we find the waiver's broadness raises questions about its meaning and demonstrates its one-sidedness. Id. at 1018. The language chosen by Swimwest is not clear and could potentially bar any claim arising under any scenario. The waiver begins: "I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT...This language never makes clear what type of acts the word "fault" encompasses. Although Swim-west alleges that negligence is synonymous with fault, we find that fault is susceptible to a broader interpretation. Fault is currently defined as "[a]n error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement." Black's Law Dictionary 623 (7th ed. 1999). This definition is broad enough to cover a reckless or an intentional act. A waiver of liability for an intentional act would clearly place the exculpatory clause in violation of public policy. Merten, 108 Wis. 2d at 212; Restatement (Second) of Contracts § 195(1) (1981). We again emphasize that exculpatory language must be strictly construed against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81.

¶ 20. If Swimwest wanted to make clear that the signer is releasing it from negligent acts, it could have included the word "negligence" in the waiver. While this court has never specifically required exculpatory clauses to include the word "negligence," we have stated that "we consider that it would be very helpful for such contracts to set forth in clear and express terms that the party signing it is releasing others for their negligent acts...." Dobratz, 161 Wis. 2d at 525.

¶ 21. Likewise, the broadness of the exculpatory language makes it difficult to ascertain exactly what was within Wilson's or Swimwest’s contemplation. We have consistently held that "[o]nly if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable." Id. at 520 (citing Arnold, 111 Wis. 2d at 213). For example, in Arnold, we voided an exculpatory clause, because the accident that occurred was not within the contemplation of the parties when they signed the agreement. The case involved a waiver signed by a racecar driver, whereby he agreed not to hold liable the race promoter, the racing association, the track operator, the landowner, and any other driver in the race for injuries arising from the race. The plaintiff was severely injured after he crashed his car, and the rescue personnel sprayed chemicals into his burning car. The fumes that the spray created were toxic and caused the driver severe brain damage. In rendering the exculpatory language unenforceable, we held that "an issue of material fact exists as to whether the risk of negligent rescue operations was within the contemplation of the parties at the time the exculpatory contract was executed." Arnold, 111 Wis. 2d at 212.

¶ 22. Like the plaintiff in Arnold, Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

¶ 23. Here, the guest registration and waiver form does not provide adequate notice of the waiver's nature and significance. See Yauger, 206 Wis. 2d at 84. In this case, the form provided by Swimwest served two purposes. It was both a "Guest Registration" application and a "Waiver Release Statement." Just as in Richards and Yauger, the exculpatory language appeared to be part of, or a requirement for, a larger registration form. In Yauger, for example, the plaintiff signed a one-page document that served as an application for a season ski pass and also contained a release of liability. Yauger, 206 Wis. 2d at 87. The waiver in this case could have been a separate document, providing Wilson with more adequate notice of what she was signing. Also, a separate signature line could have been provided, but was not. "Identifying and distinguishing clearly between those two contractual arrangements could have provided important protection against a signatory's inadvertent agreement to the release." Richards, 181 Wis. 2d at 1017.

¶ 24. Another problem -with the form was that there was nothing conspicuous about the paragraph containing the "Waiver Release Statement." See Yauger, 206 Wis. 2d at 87. "The form, looked at in its entirety, must be such that a reviewing court can say with certainty that the signer was fully aware of the nature and the significance of the document being signed." Id. at 88. Here, the entire form was printed on one card, with the same size, font, and color. The fact that the release statement is in capital letters is irrelevant since all of the words on the guest registration were also in capital letters. Furthermore, the only place to sign the form was at the very end. This supports the conclusion that the waiver was not distinguishable enough.

¶ 25. We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The form itself must provide an opportunity to bargain. See Richards, 181 Wis. 2d at 1019.

¶ 26. We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer's truck. The court invalidated the contract, in part, because she "simply had to adhere to the terms of the written form." Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest. We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy.

¶ 27. All of the factors discussed lead us to conclude that the exculpatory clause in the Swimwest form violates public policy, and, therefore, is unenforceable.

h-i h-i hH

¶ 28. The final issue we address is whether Atkins is permitted to bring a wrongful death claim against Swimwest. Under Wisconsin law, a wrongful death action may be brought under such circumstances "as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. ..." Wis. Stat. § 895.03.

¶ 29. As the son of Wilson, Atkins was a proper claimant for a wrongful death claim against Swimwest, pursuant to Wis. Stat. § 895.04. However, because the circuit court determined that Wilson would have been barred from bringing suit, the court consequently determined that Atkins was also barred. While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646, 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.

IV

¶ 30. In summary, we conclude that the exculpatory language in Swimwest's form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word "fault" on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for "fault," and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

By the Court. — The decision of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

PATIENCE DRAKE ROGGENSACK, J.

¶ 31. {concurring). While I agree with the mandate to reverse and remand this matter, I write separately for two reasons: (1) because the court paints with too broad a brush when it strikes down the waiver due to its conclusion that Swimwest Family Fitness Center did not give Charis Wilson the opportunity to bargain on the terms of the release, without explaining that while the opportunity to bargain is desirable, it is not a separate component that may be dispositive of a waiver's validity, and (2) because whether Wilson contemplated the possibility of her own death when she signed the waiver of liability is a question of fact that we should not decide on appeal.

¶ 32. In the absence of legislation that prohibits them, waivers of liability, also known as exculpatory contracts, generally have been upheld. Arnold v. Shawano County Agric. Soc'y, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983). However, exculpatory contracts, such as the one Wilson signed to obtain the opportunity to swim in the Swimwest pool, are not favored in the law. Id.

¶ 33. When an exculpatory contract is reviewed by a court upon a claim that the contract violates public policy, there is a tension that is always present. On one hand, the court must consider the right to contract freely in the management of one's affairs without government interference, and on the other hand, the court must consider that the shifting of responsibility for a tortfeasor's negligent acts may tend to permit more negligent conduct. Id. at 209, n.2. We have balanced this tension by consistently requiring that exculpatory contracts contain two components in order to survive a public policy challenge: (1) a description that "clearly, unambiguously, and unmistakably inform[s the signer] of the rights he [or she is] waiving," Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 86, 557 N.W.2d 60 (1996), and (2) a description that "clearly and unequivocally communicate [s] to the signer the nature and significance of the document being signed." Id. at 86-87. In regard to these components, releases that serve two purposes and those that are not conspicuously labeled have been held to be insufficient to draw the signer's attention to the fact that he is waiving liability for other parties' negligence, as well as his own. Richards v. Richards, 181 Wis. 2d 1007, 1017, 513 N.W.2d 118 (1994). And a release that is so broad as to be interpreted to shift liability for a tortfeasor's conduct under all possible circumstances, including reckless and intentional conduct, and for all possible injuries, catastrophic as well as minor, will not be upheld. Id. at 1017-18.

¶ 34. In Richards, we also identified a third consideration that may be examined when exculpatory contracts are reviewed: Whether the injured party has had an opportunity to bargain in regard to the breadth of the release. Id. at 1019. However, contrary to our discussion of the two components set out above, which previous cases had evaluated, we offered no citation to precedent that would establish that the lack of an opportunity to bargain is a component necessary to a valid exculpatory contract. Instead, we linked the lack of an opportunity to bargain to the component requiring releases to clearly state the circumstances and scope of injuries contemplated in order to inform the signer of the rights that he or she is waiving. Id. at 1019-20.

¶ 35. In a more recent decision where we invalidated a waiver because it "failed to clearly, unambiguously, and unmistakably inform [the signer] of the rights he was waiving," Yauger, 206 Wis. 2d at 86, and failed to "clearly and unequivocally communicate to the signer the nature and significance of the document being signed," id. at 86-87, we also explained:

We need not address the third ground articulated in Richards, i.e., standardized agreement which offers little or no opportunity for negotiation or free and voluntary bargaining, inasmuch as either of the above principles was sufficient to void this contract.

Id. at 87 n.1. In so explaining that a lack of either of the two necessary components set out at pages 86-87 of our decision was sufficient to set aside an exculpatory contract, we chose not to establish as a third and necessary component of a public policy analysis a requirement that there be an opportunity to bargain on the terms of the release. Rather, the lack of an opportunity to bargain was a fact that a court could consider in evaluating the totality of the circumstances surrounding the execution of a waiver.

¶ 36. It is against this background that the majority opinion strikes down the contract between Wilson and Swimwest, while concluding that one of the infirmities leading to invalidation is that Wilson was not given an opportunity to bargain about the terms of the release. Majority op., ¶ 18. It also opines that, "[b]e-cause all of the factors listed in [earlier] cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause." Id., ¶ 18 n.7. In so doing, it adds the lack of an opportunity to bargain as a component of the public policy analysis, rather as reasoning used to determine whether the release was overly broad, as we employed it in Richards. It also implies that the lack of an opportunity to bargain could be sufficient to invalidate a release when it asserts, "The form itself must provide an opportunity to bargain." Majority op., ¶ 25. This is an unnecessary broadening of the law that heretofore has set the framework for the analysis of an exculpatory contract on public policy grounds.

¶ 37. My concern may seem like a minor matter, but it is very important in a practical sense. For example, the reception desk of a recreational facility is not always staffed by the owner of the facility, but rather, it may be staffed by an employee, as was the case here. It would be unrealistic to require that an employee be authorized to "bargain" about the terms of a release of liability, and it would be unrealistic that an owner always be present at the facility. Additionally, what give and take has to occur in order that there be an actual opportunity to bargain? What if a potential swimmer does not want to waive any potential claims for liability, but the owner is able to afford insurance only for catastrophic injuries, does the owner have the right to say that the person cannot swim in his pool? Those are only a few of the questions that could arise. Accordingly, I would not employ the opportunity to bargain in any way other than in an attempt to determine if the language in the release described the circumstances for which potential liability claims were being waived.

¶ 38. Additionally, in holding that the opportunity to bargain is a component of a contractual waiver, the court has effectively removed the ability of most businesses that operate paid recreational facilities to limit any type of liability by contract. In my view, this will result in an increase in lawsuits and in fewer swimming and other paid recreational facilities for Wisconsin citizens to enjoy, a result that does not further the public good.

¶ 39. Exculpatory contracts may be invalidated on a contractual basis, as well as on a public policy basis, if the injury that occurred was not within the contemplation of the parties when the agreement was signed. Arnold, 111 Wis. 2d at 211. As we have explained, "Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed." Id. We have also explained that the determination of what risks the parties to the contract intended to include in the release are questions of fact for the jury. Id. at 212.

¶ 40. An overly broad and generally stated release that may prevent the formation of a valid contract because there was no meeting of the minds by the contracting parties presents a question similar to that presented by a failure to establish the components necessary to a public policy analysis. However, under a contract analysis, the question presents as a fact question, unless the facts are undisputed and capable of only one interpretation, see Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 466-67, 449 N.W.2d 35 (1989), and in a public policy analysis the question presents as a question of law, Richards, 181 Wis. 2d at 1011. The foundations are so similar that we have cited to cases that were decided under a contract-type analysis as support for a decision based on public policy. See, e.g., id. at 1015-16 (a policy-based decision, citing Dobratz v. Thomson, 161 Wis. 2d 502, 520, 468 N.W.2d 654 (1991), a contract-based decision).

¶ 41. Here, the contract-formation question presented is whether Wilson contemplated the possibility of her own death when she signed the release. The record provides that she was a swimmer and that the part of the pool in which she was swimming was only about four feet deep. Therefore, if she tired of swimming, all she had to do to keep from sinking below the water's surface was to stand up. Additionally, statements in the coroner's report included in the record, which repeated findings from the autopsy, relate that although Wilson's cause of death is listed as "drowning," she did not die from the aspiration of water into her lungs, as one would expect when breathing continues after a person is submerged under water. The physician who conducted the autopsy labeled this phenomenon a "dry drowning." Although he did not assign any specific finding, such as a heart attack, as the cause of Wilson's failing to breathe, several possibilities were mentioned. Accordingly, there may have been medical circumstances that contributed to Wilson's death that had nothing to do with her being submerged in a swimming pool when she was found unconscious. This presents the court with material factual questions about what risks Wilson contemplated when she signed the release. In my view, there must first be a finding of what caused Wilson's death before a court can evaluate whether she could have agreed to waive that cause. This cannot be decided on summary judgment.

¶ 42. Furthermore, the majority opinion does not decide that as a matter of law Wilson could not have contemplated the possibility of her own death when she signed the release. Therefore, I would send the case back to the circuit court for determinations of what caused Wilson to stop breathing and whether Wilson and Swimwest intended the release to cover that catastrophic event. In my view, until it is known why Wilson stopped breathing, it will not be possible to determine whether she contemplated that event when she signed the waiver of liability. If the injury-causing event is found to be one that Wilson did not contemplate, the waiver she signed will have no effect on liability for her death.

¶ 43. For the reasons set forth above, I respectfully concur.

JON E WILCOX, J.

¶ 44. {dissenting). I dissent. While I certainly do not believe that all exculpatory agreements should be upheld, the majority opinion will render it virtually impossible to enforce any exculpatory agreement in Wisconsin. The majority concludes that the agreement in this case is unenforceable as against public policy for three reasons: 1) the agreement is overly broad; 2) the agreement serves two purposes; and 3) there was no opportunity for the signer to bargain or negotiate over the exculpatory language. Majority op., ¶ 18. These factors originate from this court's decision in Richards v. Richards, 181 Wis. 2d 1007, 1017-19, 513 N.W.2d 118 (1994). I disagree with the majority's application of factors one and two and while I am bound to accept the legitimacy of the third factor, I question the manner in which the third factor is applied in this case. Further, the majority fails to articulate a clear test as to what types of exculpatory agreements are enforceable in this state. The majority applies the above three factors in such a fashion so as to leave little possibility that any exculpatory agreement could be enforceable in this state.

¶ 45. The law governing the enforceability of exculpatory agreements in Wisconsin has been anything but consistent and this court has, through its various articulations of standards applicable to such agreements, failed to ever adhere to a consistent test for determining their validity. While parties wishing to execute such agreements certainly have a plethora of cases explaining when such agreements are not enforceable, our jurisprudence has not provided a beacon for litigants to successfully navigate the rocky waters of this area of the law.

¶ 46. The last time this court had the opportunity to examine the validity of exculpatory agreements in Wisconsin, we noted that our previous cases had used a variety of tests to evaluate the legitimacy of such agreements. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81-83, 557 N.W.2d 60 (1996). We explained that although our past cases had not adhered to a single test, they all had a single common thread tying them together: "[t]hese cases, in different ways, involved an exculpatory clause that failed to disclose to the signers exactly what rights they were waiving." Id. at 81. After analyzing our prior jurisprudence, including Richards, this court distilled a two-part test governing the legitimacy of exculpatory agreements:

While the law grudgingly accepts the proposition that people may contract away their liability right to recovery for negligently caused injuries, the document must clearly, unambiguously, and unmistakably express this intention. Furthermore, the document when looked at in its entirety must clearly and unequivocally communicate the nature and significance of the waiver.

Id. at 88-89. The majority in this case reverts back to the test used in Richards while ignoring the lessons of Yauger.

¶ 47. Before analyzing the exculpatory agreement, it is important to set forth precisely the nature and contents of the agreement and consider the form on which it appears as a whole. The agreement in question is contained on an index card that is five and one-half inches by five and one-half inches. The card reads:

That is the entirety of the agreement at question in this case.

¶ 48. The first reason the majority provides for striking down the exculpatory agreement contained on this card is: "this exculpatory waiver, which uses the word 'fault,' is overly broad and all-inclusive." Majority op., ¶ 18. The majority reasons that the language is ambiguous, could potentially cover a variety of claims, does not include the word "negligence," and states that it is unclear whether the risk of drowning was within the signer's contemplation. Majority op., ¶¶ 19-22.

¶ 49. "Fault," as understood by a layperson, is defined as "[a] mistake; an error" or"[responsibility for a mistake or an offense; culpability." The American Heritage Dictionary of the English Language 665 (3d ed. 1992). Thus, the clear meaning of the first clause in the waiver is that the signer agrees to assume all liability for herself, without regard to who is responsible for any mistake leading to an injury. This language plainly covers negligent conduct. The fact that the legal definition of "fault" covers reckless and intentional acts, majority op., ¶ 19, is not dispositive. As the majority correctly indicates, waivers may not be enforced to prevent liability for reckless or intentional conduct. Id. However, neither reckless nor intentional conduct is at issue in this case. The fact that the waiver may be unenforceable as to other tortious acts is not germane; the relevant inquiry is whether "the exculpatory clause . .. fail[s] to disclose to the signers exactly what rights they were waiving[,]" and whether the agreement unambiguously and unmistakably covers the tortious act at issue. Yauger, 206 Wis. 2d at 81, 86.

¶ 50. When read in context of the remaining language of the waiver release statement, the meaning of the first sentence, containing the word "fault," becomes even clearer. See Folkman v. Quamme, 2003 WI 116, ¶ 28 n.11, ¶ 29, 264 Wis. 2d 617, 665 N.W.2d 857 (words and phrases of a contract are to be read in context of the contract's other language in determining ambiguity). The second sentence of the waiver provides: "I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER." Thus, when the first two sentences of the waiver are read together in context, an ordinary reader would understand that she is agreeing to hold Swimwest harmless for any injuries she suffers while at Swimwest that are due to mistakes or errors for which Swimwest is responsible. In other words, a layperson would understand that the waiver applies to any negligent acts of Swimwest or its employees.

¶ 51. However, the majority argues that the decedent would not have contemplated the injury that occurred, majority op., ¶ 22, and focuses on the fact that the agreement does not contain the word "negligence." Majority op., ¶ 20. The decedent in this case went to a facility called "Swimwest" in order to swim laps as part of her physical therapy. Majority op., ¶ 3. She took her time to read the waiver and then signed it. Id., ¶¶ 5, 25. Yet, the majority somehow concludes that the decedent did not contemplate the risk of drowning. Regardless of whatever other activities the waiver may or may not cover, it is almost inconceivable that a reasonable person would not understand that, at a minimum, a waiver at an aquatic facility would cover the risk of drowning. What else would such a waiver cover if not the risk of drowning?

¶ 52. Must a business list in the waiver each and every conceivable form of negligence that may result in injury to a patron? The majority opinion would seem to so indicate. Majority op., ¶ 22 ("Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty."). Listing the myriad of ways in which the proprietor or its agents could he negligent would be unduly burdensome to a business and would necessitate a waiver that is much more than one page in length. Such a waiver, in addition to being quite lengthy, would certainly not be easy to read or understand.

¶ 53. In Yauger, this court cited with approval guidelines originally developed for the Uniform Commercial Code that govern warranty disclaimers. Yauger, 206 Wis. 2d at 87 n.2. One of the guidelines is that "the language of the negligence waiver should be readable. . . . and should not be written in legal jargon." Id. (quoting Stephanie J. Greer & Hurlie H. Collier, The Conspicuousness Requirement: Litigating and Drafting Contractual Indemnity Provisions in Texas After Dresser Industries, Inc. v. Page Petroleum, Inc., 35 S. Tex. L. Rev. 243, 265-70, Apr. 1994). By focusing on the absence of a legal term of art in the waiver— "negligence" — and the fact that the waiver did not precisely mention the exact negligent act leading to injury in this case, the majority's rationale runs afoul of the principle that waivers should be easy to read and should not contain legal jargon.

¶ 54. Next, the majority concludes that the waiver does not provide "adequate notice of the waiver's nature and significance" because it serves two purposes. Majority op., ¶ 23. The majority states that as in Richards and Yauger, the exculpatory language here is part of a larger registration form. Majority op., ¶ 23. However, the waiver in this case is part of a simple five and one-half inch by five and one-half inch index card. The only part of the card containing contiguous complete sentences is the waiver. The remainder of the form is comprised of mere blank lines for the reader to fill in his or her contact information.

¶ 55. Thus, the waiver is the only part of the form for a patron to read. The form of the waiver in this case stands in stark contrast to the waiver in Yauger, which was "one paragraph in a form containing five separate paragraphs" that did not stand out from the other language. Yauger, 206 Wis. 2d at 87. Here, the exculpatory language is the only language on the form to be read. This is not a case where the exculpatory language is located in fine print at the end of a multi-page document or even a case where the waiver is located in the midst of several paragraphs on a single page form. Aside from the blanks for contact information, the waiver is the form.

¶ 56. While the top portion of the card does contain blanks for the signer to supply his or her contact information, such information would seem to be a necessary part of the waiver itself, as if injury did occur, it seems logical that the facility would he in need of the injured patron's contact information. The fact that the top portion of the card is entitled "GUEST REGISTRATION" does not somehow alter the inherent nature of the form. Indeed, one of the guidelines cited in Yauger is that the waiver should be separately labeled to distinguish it from other parts of the agreement. Yauger, 206 Wis. 2d at 87 n.2.

¶ 57. The majority also stresses that there is not a separate signature line for the waiver. Majority op., ¶ 23. However, the signature line on the form is located directly under the exculpatory language, unlike the waiver in Richards, 181 Wis. 2d at 1013. One has to wonder why there would need to be a separate signature line under the blank lines in the top portion of the form.

¶ 58. The exculpatory language in this case satisfies the guidelines cited in Yauger, 206 Wis. 2d at 87 n.2. The waiver is conspicuous, as it is the only "paragraph" on the form. The waiver is set off from the remainder of the form in a separately titled section. The waiver is easy to locate. The waiver appears directly above a signature line and the waiver is the only portion of the document requiring a signature. The heading before the waiver is not misleading. The waiver itself is written in plain, easy to read language and does not contain an abundance of legal jargon. The waiver is written in large print. In other words, there is no doubt that the waiver is conspicuous and informs the signer of its nature and significance.

¶ 59. Yet, the majority concludes that the waiver "was not distinguishable enough." Majority op., ¶ 24. Apparently, the waiver would have been distinguishable if it appeared on a separate card, or if the form was multicolored and had but one more signature line, or if Swimwest had not utilized capital letters when asking for contact information. Id., ¶¶ 23-24. This type of analysis elevates form over substance and fails to consider the form on which the exculpatory clause appears as whole.

¶ 60. The majority states that it is clarifying the law in Wisconsin concerning exculpatory clauses. Majority op., ¶ 10. However, its application of these first two factors has done just the opposite. In Yauger we stated that a waiver appearing on a form with other language should be conspicuously labeled, set apart, and should stand out from the rest of the form. Yauger, 206 Wis. 2d at 87 & n.2. Here, this was done. Yet, the majority uses the very fact that the "Waiver Release Statement" is labeled separately from the "Guest Registration" portion to conclude that the form serves two purposes and thus does not provide adequate notice of the significance and nature of the waiver. Majority op., ¶ 23. In Yauger, we suggested that a waiver should be easy to read and should not be written in legalese. Yauger, 206 Wis. 2d at 87 & n.2. Yet, the majority faults Swimwest for not utilizing a legal term of art— "negligence" — in its waiver, and for not listing the precise act of negligence that allegedly occurred in this case. Majority op., ¶¶ 20, 22.

¶ 61. Further, as close reading of Yauger indicates, a document "serving two purposes" is not in and of itself questionable. Rather, the concern arises that the signer may not be aware of the nature and significance of the waiver when a document serves two purposes and the waiver is not conspicuous. Yauger, 206 Wis. 2d at 86-88. This concern is not present here because the waiver is conspicuous and, read in context, clearly indicates what is being waived. Thus, the fact that the form on which it appears arguably serves two purposes should not be dispositive.

¶ 62. Finally, the majority concludes that the waiver is not valid because "there was no opportunity for Wilson to bargain over the exculpatory language[.]" Majority op., ¶ 25. This "bargaining" requirement originated in Richards, 181 Wis. 2d at 1019-20, and was not based on any existing case law. The "bargaining" requirement was not utilized in Yauger. The dissent in Richards, which I joined, indicated that this requirement was hot based on existing law and discussed the inherent problems with such a requirement. Richards, 181 Wis. 2d at 1035-43 (Day, J., dissenting). In particular, the dissent in Richards queried:

[W]hat does it mean to "negotiate" in this context, and how would [a] company ensure that the negotiations were "equal"? Are we to assess the competency of [the plaintiff] to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? ... Or is it suggested that the company must appoint someone to help [the plaintiff] draft a counter-proposal? Must the company then negotiate — in good faith, of course — about which terms of its own release it might be willing to drop in "negotiations"? And what if, despite very skilled and fair negotiations on both sides, [the plaintiff] nevertheless agrees to accept the full release.

Richards, 181 Wis. 2d at 1041 (Day, J., dissenting).

¶ 63. It is entirely impractical to require "bargaining" in this context. Almost all releases are printed on standardized forms and are a condition precedent to the use of recreational facilities. Such releases are utilized by aquatic facilities, athletic clubs, ski resorts, canoeing and rafting outfits, and other high-risk ventures such as skydiving and bungee jumping. Many of these businesses are small firms whose continued existence is based on high customer volume. Must the owner of such business, or other person with the authority to negotiate, be present at the desk of such facility during all hours of operation? Must the proprietor employ a full-time attorney whose duties include negotiating with every person in the long line of skiers waiting to brave the slopes? These businesses would grind to a halt under such practices or, at the very least, face long lines of angry customers.

¶ 64. The reality is that there is almost never an opportunity to "bargain" over exculpatory clauses, as the majority describes it. Rarely do ordinary consumers in today's fast-paced global economy have an "opportunity" to bargain over any of the terms of a contract (other than perhaps the price), as the majority describes "bargaining." The only meaningful "bargaining" tool that an ordinary consumer possesses is his or her choice to frequent another business.

¶ 65. While Richards has not been overruled and I am bound to accept the lack of the "opportunity to bargain" as a legitimate factor in the analysis of exculpatory agreements, the use of the "bargaining" factor in this case is particularly troublesome in light of the majority's refusal to set forth a workable standard describing what would satisfy the "opportunity to bargain" requirement and its failure to decide whether a single objectionable factor is sufficient to render an exculpatory clause invalid. Majority op., ¶ 18 n. 7. Richards, which utilized the "bargaining" test, noted that no one factor alone was sufficient to invalidate an exculpatory agreement. Richards, 181 Wis. 2d at 1011. Yauger, which did not discuss the bargaining factor, came to the opposite conclusion and held the presence of one factor was sufficient to invalidate an exculpatory clause. Yauger, 206 Wis. 2d at 87 n.1.

¶ 66. The majority fails to resolve this dispute and leaves open the possibility that even an exculpatory clause that is expertly drafted, conspicuous, and appears on a separate document may be invalidated merely because the signer had no "opportunity to bargain." As such, the majority places the legitimacy of all exculpatory agreements in doubt. If this court wishes to invalidate all exculpatory clauses, then it should so hold, rather than burdening businesses with confusing requirements that are impossible or unlikely to be met in any case.

¶ 67. Individuals have a right to know what the law is so that they may conduct their affairs in an orderly fashion. The majority has failed to articulate a clear, useable test that will provide meaningful guidance to those wishing to execute exculpatory agreements. Because the majority fails to articulate such a test, fails to apply the first two factors in accordance with the guidelines set forth in Yauger, and leaves open the possibility that the lack of an "opportunity to bargain" alone is sufficient to invalidate an exculpatory agreement, I respectfully dissent.

       Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § (Rule) 809.61 states, in relevant part: "The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion."

       Wilson was found unconscious at the bottom of Swimwest's lap pool. Swimwest employees pulled her from the pool and immediately administered CPR. Wilson was then transported by ambulance to University Hospital, where she died the next day, May 4, 2001. An autopsy revealed that death was caused by an Anoxic Brain Injury, the result of drowning.

       The actual form signed by Wilson is dated May 2, 2001. The complaint, coroner's report, and Arika Kleinert's affidavit all indicate, however, that Wilson signed the form and was found unconscious in the pool on May 3, 2001. The parties have presumed that the date on the form was incorrect.

       It was established in Atkins’ affidavit that Wilson knew how to swim prior to May 3, 2001.

       Restatement (Second) of Contracts § 195 states, in relevant part:
      (1) A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.
      (2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if:
      (a) the term exempts an employer from liability to an employee for injury in the course of his employment;
      (b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or
      (c) the other party is similarly a member of a class protected against the class to which the first party belongs.

        (3) A term exempting a seller of a product from his special tort liability for physical harm to a user or consumer is unenforceable on grounds of public policy unless the term is fairly bargained for and is consistent with the policy underlying that liability.

       The basic principles of contract and tort law as applied to exculpatory provisions were made clear in Richards v. Richards, 181 Wis. 2d 1007, 1016, 513 N.W.2d 118 (1994):
      The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the "prophylactic" purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Id. (citing Merten v. Nathan, 108 Wis. 2d 205, 211-12, 321 N.W.2d 173).

       We acknowledge that Yauger v. Skiing Enters., Inc., , 206 Wis. 2d 76, 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat'l Tractor Pullers Ass'n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, "the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement." Id. On the other hand, in Richards, the court stated that "none of these factors alone would necessarily have warranted invalidation of the exculpatory contract." Richards, 181 Wis. 2d at 1020; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.

       According to the court in Yauger, it did not address this factor from Richards because both of the factors it had already addressed were sufficient to void the exculpatory clause in question. Yauger, 206 Wis. 2d 76, 86 n.1.

       In Karen Kittelson's deposition, she states: ’You have to pay the fee and sign the waiver. You are not allowed to use the facility unless you sign the waiver."

       Wisconsin Stat. § 895.03 states, in relevant part:

        Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be hable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

       Wisconsin Stat. § 895.04(1) states, in relevant part: "An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs."

       A copy of the agreement is attached as an exhibit at the end of this dissent.