author: DYKMAN, P.J.

text:
    Dawn Sukala and John Sukala, Plaintiffs-Appellants, v. Heritage Mutual Insurance Company and Western National Mutual Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 99-1339.

      Submitted on briefs August 24, 2000.

    Decided November 9, 2000.

    2000 WI App 266
    (Also reported in 622 N.W.2d 457.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of D. J. Weis of Habush,

      Habush, Davis & Rottier, S. C., Rhinelander. There was oral argument by D. J. Weis.

    On behalf of the defendant-respondent, Western National Mutual Insurance Company, the cause was submitted on the brief of Nadine I. Davy of Anderson, Shannon, O'Brien, Rice & Bertz, Stevens Point. There was oral argument by Thomas W. Bertz.

    On behalf of the defendant-respondent, Heritage Mutual Insurance Company, the cause was submitted on the brief of Mark A. Klinner and Michael J. Roman of Sandfort, Zalewski & Klinner, LLP, Wausau. There was oral argument by Michael J. Roman.

    Before Dykman, P.J., Vergeront, J., and William Eich, Reserve Judge.

      Petition to review denied.

   DYKMAN, P.J.

¶ 1. Dawn and John Sukala appeal from a judgment declaring underinsured motorist (UIM) reducing clauses in two auto insurance policies valid and enforceable. Heritage Mutual Insurance Company and Western National Mutual Insurance Company issued the policies. The Sukalas argue that the Heritage reducing clause is invalid because Heritage failed to comply with statutory notice requirements when the clause became enforceable under new legislation. We conclude that the statutory notice requirements do not apply because the change in coverage was not initiated by Heritage, but instead resulted from a change in statutory law. The Sukalas also argue that the UIM reducing clauses in both policies are unconstitutional. We conclude that Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 36, 236 Wis. 2d 113, 613 N.W.2d 557, disposes of the Sukalas' constitutional argument. We further conclude that the UIM provisions in both policies are unambiguous and therefore enforceable. Accordingly, we affirm.

I. Background

¶ 2. On October 2, 1996, John Sukala was seriously injured in a two-vehicle automobile accident, while driving a truck for his employer, Haessly & Haessly. The other vehicle was driven by Bruce Hase-nohrl. Haessly was insured by Heritage Mutual Insurance Company, as was Hasenohrl. John was insured by Western National Mutual Insurance Company. Haessly's Heritage policy and the Western policy included UIM coverage. The Heritage policy UIM maximum was $1,000,000, and the Western policy maximum was $250,000 per person or $500,000 per accident. Both policies' UIM terms contained a reducing clause, a provision that limited the maximum UIM coverage. Among other limitations, the reducing clauses provided that UIM coverage would be reduced by any amount (1) paid for bodily injury under another insured's liability insurance, and (2) paid or payable as worker's compensation benefits. Since the time of the accident, Heritage has paid $100,000 to the Sukalas under the liability portion of Hasenohrl's policy, and John has received about $612,000 in worker's compensation benefits.

¶ 3. The action leading to this appeal originated in February 1997, when Dawn sued Western, Heritage, and Hasenohrl for any compensatory damages to which she was entitled.' The circuit court granted Heritage's motion that John be compelled to join Dawn's action. The Sukalas then moved the court for a declaration that the UIM reducing clause in Haessly's Heritage policy was invalid because Heritage did not comply with notice requirements set out in WlS. STAT. § 631.36(5) (1997-98). The Sukalas also moved for a declaratory judgment that WlS. STAT. § 632.32(5)(i), the statutory section that allows for UIM reducing clauses, violated both the federal and state constitutions, and that both the Heritage and Western policies' reducing clauses were therefore invalid. The court denied both motions and incorporated its decision on the motions into a final judgment disposing of the case. The Sukalas appeal.

II. Analysis

A. Wis. Stat. § 631.36(5) Notice Requirements

¶ 4. The Sukalas first argue that the reducing clause in the Heritage policy was invalid because when Heritage notified Haessly of changes in UIM coverage, Heritage failed to comply with notice requirements in WlS. Stat. § 631.36(5). This presents a question involving statutory construction and the application of a statute to a particular set of facts. These are questions of law that we decide de novo. See Hanson v. Prudential Property & Cas. Ins. Co., 224 Wis. 2d 356, 363, 591 N.W.2d 619 (Ct. App. 1999), review denied, 225 Wis. 2d 490, 594 N.W.2d 384 (1999). We conclude that Heritage was not required to comply with § 631.36(5).

¶ 5. Wisconsin Stat. § 631.36(5) requires that when an insurer "offers or purports to renew the policy but on less favorable terms," the insurer must notify the policyholder of the new terms sixty days prior to the renewal date. In addition, the notice must include a statement of the policyholder's right to cancel. See WlS. STAT. § 631.36(5)(a). If the insurer fails to follow the notice requirements, then as a general rule it must "continue the policy for an additional period of time equivalent to the expiring term and at the same premiums and terms of the expiring policy. ..." Id. In Hanson, 224 Wis. 2d at 368, and Roehl v. American Family Mut. Ins. Co., 222 Wis. 2d 136, 146, 585 N.W.2d 893 (Ct. App. 1998), we held that § 631.36(5) does not apply when the change in a renewed policy is a result of statutory changes, and not a change initiated by the insurance company.

¶ 6. The Sukalas acknowledge that the applicability of the reducing clause in the Heritage policy was triggered by a statutory change as occurred in Hanson and Roehl. Nevertheless, they attempt to distinguish their case from Hanson and Roehl, arguing that in those cases the insurance companies had not actually sent any notice of altered terms, whereas Heritage elected to include information about changes in UIM coverage when it sent a renewal notice to Haessly. The Sukalas argue that once Heritage chose to send some notice regarding UIM coverage, it should have complied with the timing and content requirements of WlS. Stat. § 631.36(5). They ask us to adopt a "voluntarily undertaken duty" rule from negligence cases such as Wulf v. Rebbun, 25 Wis. 2d 499, 131 N.W.2d 303 (1964). This rule states that, "[although one may have no duty to perform an act, if he attempts to do something to another even although gratuitously he must exercise reasonable care." Wulf, 25 Wis. 2d at 503.

¶ 7. We decline to adopt such a rule. Neither Hanson nor Roehl suggests any basis for the distinction the Sukalas make. Moreover, the effect of the distinction is to establish liability for those insurance companies who do more than what is statutorily required of them, while insurance companies who meet only the legal minimum standards remain protected under Hanson and Roehl. We conclude that WlS. STAT. § 631.36(5) does not apply to changes related to insurance policy reducing clauses that are not initiated by the insurance company but instead come into effect by a statutory change, even where the insurance company gratuitously sends a renewal notice discussing altered UIM terms. Heritage was not required to give notice that complied with § 631.36(5), and the UIM reducing clause was not rendered inoperative because of Heritage's failure to do so.

B. Validity of UIM Reducing Clauses

¶ 8. When the Sukalas initiated this appeal, the parties disputed whether WlS. Stat. § 632.32(5)(i), the statute permitting UIM reducing clauses like those at issue here, was unconstitutional in violation of substantive due process. The Sukalas' position was that if § 632.32(5)(i) were unconstitutional, then the reducing clauses in the Heritage and Western policies would necessarily be invalidated. After the parties filed their briefs, the supreme court decided Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 36, 236 Wis. 2d 113, 613 N.W.2d 557, holding that § 632.32(5)(i) does not violate substantive due process because it does not deprive policy holders of any constitutionally protected right. We conclude that Dowhower disposes of the Sukalas' constitutional argument. The Dowhower court addressed the same statute at issue here, Dowhower, 2000 WI 73 at ¶ 33, and the language in the Heritage and Western policies is nearly identical to the language in that statute.

. ¶ 9. In their briefs, the parties did not address whether the UIM provisions were ambiguous. However the issue arose at oral argument. Because the question of whether an insurance policy is ambiguous is a question of law, see Wisconsin Label Corp. v. Northbrook Property & Cas. Ins. Co., 2000 WI 26, ¶ 24, 233 Wis. 2d 314, 607 N.W.2d 276, we may consider it even though the trial court did not and the parties did not brief the issue, see Bartus v. DHSS, 176 Wis. 2d 1063, 1071, 501 N.W.2d 419 (1993); Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). We choose to do so because the parties had the opportunity to address the issue at oral argument.

¶ 10. The terms of an insurance policy are ambiguous only when they are fairly susceptible to more than one construction. See Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992). Policy language may still be unambiguous even when it is complex or cumbersome. See Heater v. Fireman's Fund Ins. Co., 30 Wis. 2d 561, 565, 141 N.W.2d 178 (1966). We will not rewrite an insurance policy to bind an insurer to a risk it did not contemplate unless the terms are ambiguous. See Maas, 172 Wis. 2d at 79.

¶ 11. It is true that if an insured were only to read the declarations section of the Heritage or Western policies, she or he would simply see a dollar figure representing the maximum UIM coverage, an amount that is not fully available under the circumstances of some auto accidents. However, most insurance policies contain limitations and exclusions, and that does not make them ambiguous. A declarations page is intended to provide a summary of coverage and cannot provide a complete picture of coverage under a policy. Therefore the question we must ask is whether the UIM provisions, read together with the declarations page, are fairly susceptible to more than one construction. We conclude that they are not.

¶ 12. The section of the Heritage policy at issue is Haessly's business auto coverage. The very first paragraph of the "Business Auto Coverage Form" of the policy contains the following language: "Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered." The UIM portion of the business auto coverage is affected by a two-and-one-half page endorsement entitled "Wisconsin Uninsured and Underinsured Motorists Coverage." The next line after the title states, "This endorsement modifies insurance provided under the following: Business Auto Coverage Form." On the first page, in bold and capital letters, the endorsement lists section four as "Limit of Insurance" and continuing on the next page, it lists the following limitations for underinsured motorist coverage:

The Underinsured Motorists Limit of Insurance will be reduced by any of the following that apply:
(a) All sums paid by or on behalf of any person or organization that may be legally responsible for the bodily injury for which the payment is made.
(b) All sums paid or payable under any Workers' Compensation law.
(c) All sums paid or payable under any disability benefits laws.

¶ 13. The provisions of the Western policy are similarly unambiguous, though they differ from the Heritage policy in format because the Western policy originally contained uninsured motorist (UM) coverage, but no UIM coverage. An endorsement to the Western policy states in large capital letters at the top, "This endorsement changes the policy. Please read it carefully. Underinsured Motorists Coverage." In the two-and-one-half page endorsement, Western lists "Limit of Liability" in bold and capital letters. Under that heading, the policy states limitations nearly identical to those in the Heritage policy.

¶ 14. Under either policy, it may be somewhat cumbersome for an insured to cross-reference the limiting provisions and the declarations page. However, this does not make the policy language ambiguous, nor are the provisions ambiguous because the calculation of actual benefits under some circumstances could become complex. See Heater, 30 Wis. 2d at 565. "[A]n otherwise unambiguous provision is not made ambiguous simply because it is difficult to apply to the facts of a particular case." Quinlan v. Coombs, 105 Wis. 2d 330, 335, 314 N.W.2d 125 (Ct. App. 1981). We conclude that the UIM provisions in the terms of the Heritage and Western policies are unambiguous. Therefore, the Sukalas must be held to the terms of the policies.

¶ 15. Even though we have concluded that both policies' UIM provisions are unambiguous, we address whether they might nevertheless provide "illusory" coverage, as the Sukalas contended at oral argument. In some cases, before the legislature enacted WlS. Stat. § 632.32(5)(i), we held that UIM provisions were invalid when they rendered coverage "illusory." See, e.g., Hoglund v. Secura Ins., 176 Wis. 2d 265, 267, 500 N.W.2d 354 (Ct. App. 1993); Kuhn v. Allstate Ins. Co., 181 Wis. 2d 453, 465, 510 N.W.2d 826 (Ct. App. 1993), aff'd on other grounds, 193 Wis. 2d 50, 532 N.W.2d 124 (1995). We now conclude that under § 632.32(5)(i) and Dowhower, UIM reducing clauses like those at issue here can no longer be considered to render coverage "illusory."

¶ 16. In the past, our analysis of whether UIM provisions rendered coverage "illusory" has been closely linked to a determination that such provisions violated public policy. See Sweeney v. General Cas. Co., 220 Wis. 2d 183, 189-90, 582 N.W.2d 735 (Ct. App. 1998); Meyer v. Classified Ins. Co., 192 Wis. 2d 463, 468-69, 531 N.W.2d 416 (Ct. App. 1995); Hoglund, 176 Wis. 2d at 271. However, courts are not the primary policy-making branch of government. That role is reserved for the legislature. See City of Sun Prairie v. Davis, 226 Wis. 2d 738, 755, 595 N.W.2d 635 (1999). If appellate courts and the legislature differ on the appropriate public policy, the legislative view prevails as long as the legislature is acting within constitutional limitations. See Flynn v. DOA, 216 Wis. 2d 521, 539, 576 N.W.2d 245 (1998). "[P]ublic policy is regularly adopted and promulgated in the form of legislation." Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834 (1983). In 1995, the legislature added subsection (5)(i) to WlS. STAT. § 632.32, which is titled, "Provisions of motor vehicle insurance policies." See 1995 Wis. Act 21, § 4. Section 632.32 now reads, in relevant part:

(5) Permissible provisions.
(i) A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.
3. Amounts paid or payable under any disability benefits laws.

When we interpret a statute, "[w]e first examine the plain language of the statute and if the meaning is plain, we need not look further than the language itself to determine the statute's meaning." Hanson, 224 Wis. 2d at 366. The plain language of § 632.32(5)(i) indicates the legislature's view that UIM reducing clauses are permissible and do not violate public policy.

¶ 17. In Sweeney, we invalidated a UIM reducing clause under pre-WlS. Stat. § 632.32(5)(i) case law. Sweeney, 220 Wis. 2d at 196-97. Judge Deininger concurred:

I have difficulty understanding what public policy is served by our present and prior holdings on the issue presented. We insist here and in Kuhn [v. Allstate Ins. Co.] that an insurance policy may not be written so as to guarantee that a certain dollar amount of insurance coverage will be available to compensate an insured when he or she is injured in an accident caused by another driver, if the policy provides that the specified sum will be paid in part by the tortfeasor's insurer and in part by the insured's own company. Yet, the coverage in question may be written, with judicial blessing, so as to limit the compensation available to the insured to the same fixed sum, provided it is paid entirely by the tortfeasor's insurer. The legislature apparently does not share this court's view that policy language such as the reducing clause at issue here violates public policy. Section 632.32(5)(i)l, STATS., effective July 15, 1995, now permits a motor vehicle insurance policy to "provide that the limits under the policy for uninsured and underinsured motorist coverage for bodily injury... shall be reduced by... [ajmounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury ... for which the payment is made."

Id. at 199 (emphasis added).

¶ 18. In Dowhower, the supreme court reviewed the facts, reasoning, and holdings of Sweeney, Kuhn, and Hoglund. Dowhower, 2000 WI 73 at ¶¶ 25-31. It then concluded that "[t]he state of the law was summed up in a concurrence to Sweeney by Judge Deininger" and quoted , his analysis. Dowhower, 2000 WI 73 at ¶ 32. The court then held:

When we consider these cases in conjunction with Wis. Stat. § 632.32(5)(i)l, we conclude that an insurer may reduce payments made pursuant to a UIM policy by amounts received from other legally responsible persons or organizations, provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources.

Id. at ¶ 33. The supreme court in Dowhower and Judge Deininger in Sweeney refer only to the first of the three subdivisions in WlS. Stat. § 632.32(5)(i). Dowhower, 2000 WI 73 at ¶ 33; Sweeney, 220 Wis. 2d at 199. However, we see no reason why our analysis here should not also apply to the other two subdivisions providing that UIM coverage may be reduced by amounts paid or payable as worker's compensation and disability benefits. See Wis. Stat. § 632.32(5)(i)2 and 3. Therefore, our analysis applies to John Sukala's worker's compensation benefits as well as amounts the Sukalas received under Hasenohrl's liability policy.

¶ 19. We read the Dowhower court's statements to mean either that (1) unambiguous UIM reducing clauses can no longer be considered "illusory" or (2) asking whether unambiguous UIM reducing clauses are illusory is no longer a valid inquiry. Either conclusion is consistent with a well-settled general rule of insurance contract interpretation: If an insurance policy is unambiguous, then our analysis is complete, and we simply apply the terms of the policy rather than engaging in any construction. See, e.g., Rockline, Inc. v. Wisconsin Physicians Serv. Ins., 175 Wis. 2d 583, 590, 499 N.W.2d 292 (Ct. App. 1993).

¶ 20. In Dowhower, the supreme court did not overrule Sweeney, Kuhn, or Hoglund, and neither do we. "[0]nly the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals." Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). However, we must resolve any conflict between our past decisions and a supreme court opinion in favor of the supreme court opinion. See State v. Ameritech Corp., 185 Wis. 2d 686, 696, 517 N.W.2d 705 (Ct. App. 1994), aff'd, 193 Wis. 2d 150, 532 N.W.2d 449 (1995). We conclude that under Dowhower and the declared public policy of the legislature in Wis. STAT. § 632.32(5)(i), UIM reducing clauses complying with § 632.32(5)(i) cannot render UIM coverage "illusory." Once we have concluded that the UIM provisions of a policy are unambiguous, as we have here, then our inquiry is at an end.

By the Court. — Judgment affirmed.

       1n their brief, the Sukalas state that the $100,000 was paid to Dawn. We do not distinguish between Dawn in her individual capacity and the Sukalas in their joint capacity on this appeal because none of the issues before us are affected by the distinction.

       The parties do not provide record cites referring to evidence that these amounts were paid, nor do we find any authoritative support upon our own search of the record. However, because the parties do not appear to dispute the amounts or the fact of payment, we take these facts as true.

       Before this appeal, Hasenohrl was dismissed from the suit, as was Heritage in its capacity as Hasenohrl's liability insurer.

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted. WISCONSIN STAT. § 631.36(5) reads in part:
      RENEWAL with ALTERED TERMS, (a) General. Subject to pars, (b) and (d), if the insurer offers or purports to renew the policy but on less favorable terms or at higher premiums, the new terms or premiums take effect on the renewal date if the insurer sent by 1st class mail or delivered to the policyholder notice of the new terms or premiums at least 60 days prior to the renewal date. If the insurer notifies the policyholder within 60 days prior to the renewal date, the new terms or premiums do not take effect until 60 days after the notice is mailed or delivered, in which case the policyholder may elect to cancel the renewal policy at any time during the 60-day period. The notice shall include a statement of the policyholder's right to cancel. If the policyholder elects to cancel the renewal policy during the 60-day period, return premiums or additional premium charges shall be calculated proportionately on the basis of the old premiums. If the insurer does not notify the policyholder of the new premiums or terms as required by this subsection prior to the renewal date, the insurer shall continue the policy for an additional period of time equivalent to the expiring term and at the same premiums and terms of the expiring policy, except as permitted under sub. (2) or (3).

       Wisconsin Stat. § 632.32(5)(i) reads:
      A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
      1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
      2. Amounts paid or payable under any worker's compensation law.
      3. Amounts paid or payable under any disability benefits laws.

       Apparently, the parties do not dispute that John is eligible for UIM coverage under Haessly's policy with Heritage.

       While the Dowhower court was interpreting the 1995-96 statute, Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 1, 236 Wis. 2d 113, 613 N.W.2d 557, the language of WlS. STAT. § 632.32(5)(i) has not changed.

       We are not convinced by the argument that Dowhower departs from the rule that whether an insurance policy is ambiguous is a question of law subject to de novo review. While the Dowhower court remanded to the circuit court to decide whether the insurance policy there was ambiguous, Dowhower, 2000 WI 73 at ¶ 35, four justices addressed the question of ambiguity, id. at ¶ 35, ¶ 37, ¶ 55.

       "It is the often repeated rule in this state that issues not considered by the circuit court will not be considered for the first time on appeal. This rule is not absolute, however, and exceptions are made." Jackson v. Benson, 218 Wis. 2d 835, 901, 578 N.W.2d 602 (1998) (citations omitted). Where all the issues raised are legal questions that can be disposed of based upon consideration of the record before the appellate court, we may exercise discretion to decide the entire case in the interests of judicial economy and finality. See id.

       We note that the UIM reducing clause in the policy essentially mimics the language in WlS. STAT. § 632.32(5)(i), which we assume is an example of what the legislature viewed as an unambiguous means of conveying the allowable limitations.

       Whether an insurance contract is "illusory" is a question of law, see Hoglund v. Secura Ins., 176 Wis. 2d 265, 268, 500 N.W.2d 354 (Ct. App. 1993), and we may address this issue though it was not raised below, see Bartus v. DHSS, 176 Wis. 2d 1063, 1071, 501 N.W.2d 419 (1993); Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).

       The Dowhower court noted that it still "recognize[s] that a reducing clause may be ambiguous within the context of the insurance contract." Dowhower, 2000 WI73 at ¶ 35.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    In the Matter of the Refusal of Stephen P. Gautschi: State of Wisconsin, Plaintiff-Respondent, v. Stephen P. Gautschi, Defendant-Appellant.

    Court of Appeals

      No. 99-3065.

      Submitted on briefs September 12, 2000.

    Decided November 9, 2000.

    2000 WI App 274
    (Also reported in 622 N.W.2d 24.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kathleen M. Ptacek, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, Deininger, JJ., and William Eich, Reserve Judge.

      Petition to review denied.

   DEININGER, J.

¶ 1. Stephen Gautschi appeals an order revoking his motor vehicle operating privilege based on his refusal to submit to an implied consent blood alcohol test. He argues that the notice of intent to revoke his operating privilege failed to provide the information required by WlS. STAT. § 343.305(9)(a)5, thereby depriving the trial court of personal jurisdiction to revoke his operating privilege. We conclude that although the notice contained a technical error, it did not prejudice Gautschi. Accordingly, we affirm the trial court's order.

BACKGROUND

¶ 2. Gautschi was arrested for operating a motor vehicle while under the influence of an intoxicant (OMVWI). He refused to submit to a test to determine his blood alcohol content, in violation of Wisconsin's informed consent law. See Wis. Stat. § 343.305(2). The officer then provided Gautschi with a form entitled "Notice of Intent to Revoke Operating Privilege."

¶ 3. Gautschi timely filed a request for a refusal hearing and moved to dismiss the proceeding based on a deficient notice. The trial court denied his motion, and, based on stipulated facts, ordered his operating privilege revoked. Gautschi appeals the revocation order.

ANALYSIS

¶ 4. Gautschi claims that the "Notice of Intent to Revoke Operating Privilege" given to him following his refusal was defective, and thus the court lacked personal jurisdiction to revoke his operating privilege. He contends that the notice misrepresented what issues could be contested at a refusal hearing, as set forth by the legislature in WlS. STAT. § 343.305(9)(a)5. We agree with Gautschi that the notice fails to provide "substantially all" of the information required under the statute, which provides in relevant part as follows:

If a person refuses to take a test under sub. (3)(a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege... . The notice of intent to revoke the person's operating privilege shall contain substantially all of the following information:
4. That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.
5. That the issues of the hearing are limited to:
a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . . . and whether the person was lawfully placed under arrest for violation ofs. 346.63(1) ... or a local ordinance in conformity therewith.

WlS. STAT. § 343.305(9)(a) (emphasis added).

¶ 5. The "Notice of Intent to Revoke Operating Privilege" given to Gautschi informed him in relevant part as follows:

The issues to be decided at the hearing are limited to whether I was entitled to request that you submit to the test, whether proper notice was given, whether you refused to submit and whether you have a physical disability or disease unrelated to the use of alcohol or controlled substance which was the basis for your refusal.
If you do not request a hearing within 10 days of the date of this notice shown above, your operating privilege will be revoked for a period of not less than one year or more than three years. ...
This notice of intent to revoke your operating privilege is given you as required by s. 343.305(9).

(Emphasis added.)

¶ 6. As noted above, the notice given under WlS. STAT. § 343.305(9)(a) must contain "substantially all" of the information specified in the statute. The parties disagree whether the notice at issue complies with this requirement. According to the State, "to inform the arrestee that the issues at the hearing include whether the officer is entitled to request that a driver submit to the test, necessarily implicates the issues of whether a lawful arrest based on probable cause took place prior to the request." (Emphasis added.) We disagree that the notice adequately informs its recipient that he or she may challenge whether the officer had probable cause to believe that the arrestee was OMVWI and whether his or her arrest was lawful. Put another way, we conclude that "whether [the officer] was entitled to request that you submit to the test" is not substantially the same as "[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . . . and whether the person wás lawfully placed under arrest for violation of s. 346.63(1)."

¶ 7. We agree with Gautschi that the notice is misleading regarding the permissible issues at a refusal hearing. An arrestee may read the language in the notice and conclude that the officer was "entitled to request" an alcohol test simply because the officer was wearing a badge and uniform. Not all people are trained in the law and would understand that the phrase "entitled to request that you submit to the test" encompasses the issues of probable cause and authority to arrest for OMVWI. Moreover, it is not sufficient, as the State maintains, that the other hearing issues are more clearly identified, or that the notice refers to the statute at issue. We conclude that a significant deviation or omission from the required statutory information is not cured by the fact that other required information is properly provided, or because a statutory reference is included. In sum, we conclude that the notice to Gautschi failed to include substantially all of the information required by WlS. Stat. § 343.305(9)(a), specifically, the information set forth in subp. 5.a.

¶ 8. Even though the notice was deficient, however, it does not mean that Gautschi is entitled to reversal of the revocation order and dismissal of the proceedings. A refusal hearing is a special proceeding for purposes of WlS. STAT. § 801.01(2). See State v. Schoepp, 204 Wis. 2d 266, 270, 554 N.W.2d 236 (Ct. App. 1996). The notice to revoke is similar to a summons, in that it provides the court with jurisdiction over its recipient. See WlS. STAT. § 343.305(9)(b) ("The use of the notice under par. (a)... by a law enforcement officer in connection with the enforcement of this section is adequate process to give the appropriate court jurisdiction over the person."); see also Schoepp, 204 Wis. 2d at 271 ("The notice of intent to revoke ... is akin to the summons and complaint requirements of Chapters 801 and 802 ... .").

¶ 9. We must next determine, therefore, whether the cited deficiency in the notice is a "fundamental error" that deprives the court of personal jurisdiction over Gautschi, or if the defect is merely a "technical error." See Burnett v. Hill, 207 Wis. 2d 110, 121, 557 N.W.2d 800 (1997). Whether a defect is fundamental or technical is a question of law that we review de novo. See id. If the error is merely technical, we look to see whether the State has established that Gautschi was not prejudiced by the error. See id. If the defect is fundamental, however, whether the party was prejudiced is irrelevant. See American Family Mut. Ins. Co. v. Royal Ins. Co. of America, 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992).

¶ 10. Gautschi contends that the failure to clearly identify each of the possible hearing issues provided in the statute is a fundamental error, depriving the court of jurisdiction. He insists that the notice is "affirmatively misleading." Although the notice properly states that the hearing issues are limited, it then misidentifies those issues, thereby, according to Gaut-schi, effectively excluding two of them. We agree with the State, however, that the insufficient description in the notice of the issues which may be contested at a refusal hearing constitutes a technical error, and that Gautschi was not prejudiced by the error.

¶ 11. To determine whether a defect is technical or fundamental, we look to the purpose of the statute, not just its wording. See State v. Moline, 170 Wis. 2d 531, 540, 489 N.W.2d 667 (Ct. App. 1992). "If the purpose of the rule was fulfilled, the defect was not fundamental but technical." Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 208 ¶ 31, 562 N.W.2d 401 (1997). The supreme court determined in Gaddis v. La Crosse Products, Inc., 198 Wis. 2d 396, 405, 542 N.W.2d 454 (1996), that a plaintiffs failure to sign a summons, but not the complaint, still fulfilled the purpose of certifying that the action was well-grounded in fact and warranted by law, and was hence a technical defect. And, in Burnett v. Hill, 207 Wis. 2d 110, 125, 557 N.W.2d 800 (1997), the court similarly concluded that a plaintiffs service of an unauthenticated copy of a publication summons, along with authenticated copies of the original summons and complaint, fulfilled the purpose of the statutory requirement for authentication, and was therefore not a fundamental error. In contrast, where a defect prevents the purpose of the statute from being served, the supreme court has deemed the defect fundamental. See American Family Mut. Ins. Co., 167 Wis. 2d at 535 (service of an unauthenticated photocopy of an authenticated summons and complaint on a party was a fundamental defect because it did not fulfill the purpose of assuring that the copies served are true copies of the filed documents).

¶ 12. The supreme court has recognized that "Wisconsin courts have allowed for nonprejudicial technical errors where the defect relates to the content or form of the summons." Gaddis, 198 Wis. 2d at 403 (citing American Family Mut. Ins. Co., 167 Wis. 2d at 530-32). As an example, the court noted that in Canadian Pacific Ltd. v. Omark-Prentice Hydraulics, Inc., 86 Wis. 2d 369, 374, 272 N.W.2d 407 (Ct. App. 1978), this court concluded that a summons which failed to specify that the defendant must answer the complaint within twenty days, as then required by statute, had not resulted in prejudice to the defendant, and thus, did not constitute a jurisdictional defect. Gaddis, 198 Wis. 2d at 403.

¶ 13. The statute at issue in this case is WlS. Stat. § 343.305(9)(a), whose purpose is "to give notice" and

it is the "giving of the notice to the person charged that satisfies due process." . . . [0]ne of the reasons for the statute [is] the providing of notice of what is going to be happening to that driver as a result of the refusal and an opportunity to be heard before it happens. Thus, the legislature's goal was to satisfy due process. As explained by the supreme court . . . "[procedural due process requires that the state afford [the defendant] notice and an opportunity to be heard at a meaningful time and in a meaningful manner."

State v. Moline, 170 Wis. 2d 531, 540-41, 489 N.W.2d 667 (Ct. App. 1992) (citations omitted and emphasis added). We held in Moline that the circuit court was not deprived of jurisdiction over the defendant where the officer did not "immediately" prepare and serve the notice, as the statute directs. Id. at 541-42. Rather, we noted that "[d]ue process was satisfied," because the defendant in Moline "was given all the pertinent information concerning what would happen to him as a result of his refusal [and h]e was afforded notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 541.

¶ 14. We similarly conclude here that, although the notice at issue did not contain "substantially all" of the statutorily required information, it nonetheless fulfilled the purpose of WlS. STAT. § 343.305(9)(a). It provided meaningful notice and the opportunity to be heard. Even though two of the permissible hearing issues were not well articulated in the notice, Gautschi was notified that his operating privilege would be revoked, that he had a right to a hearing, and that the issues at the hearing would be limited. The deficiency in the "content dr form" of the notice was thus merely a technical, and not a fundamental, error. See Gaddis, 198 Wis. 2d at 403.

¶ 15. We must next consider whether the State has established that Gautschi was not prejudiced by the deficiency in the notice he received. See Burnett, 207 Wis. 2d at 125. "In determining whether a technical error has prejudiced a defendant, we bear in mind the legislature's instruction that we disregard a defect which does not affect the substantial rights of the party asserting error." Id. at 126 (citing WlS. STAT. § 805.18). We conclude that Gautschi was not prejudiced by the technical error. Even though the notice did not precisely communicate all of the possible issues he could raise at a refusal hearing, the record does not reveal any prejudice to him resulting from this defect. Gaut-schi filed a timely request for a hearing and was given the opportunity to have one. He was not precluded from challenging the existence of probable cause or the lawfulness of his arrest for OMVWI. Based on the stipulated facts presented to the court, it specifically determined that "the officer had probable cause to believe that the person was operating while under the influence, [and] that he was lawfully placed under arrest." Thus, we determine that the technically defective notice did not prejudice Gautschi.

CONCLUSION

¶ 16. For the reasons discussed above, we affirm the order of the circuit court.

By the Court. — Order affirmed.

       On Gautschi's motion, to which the State acquiesced, the chief judge ordered this case to be heard by a three-judge panel. See WlS. STAT. § 809.41 (1997-98). All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       The State argues that "it would fly in the face of common sense to require that every scintilla of the statutory information be supplied in the notice where the Legislature instead expressly required only that the information be substantially contained therein." Although we agree with this statement, we do not agree with the conclusion the State would have us draw from it. As stated above, we conclude that the notice does not contain "substantially all" of the information set forth in the statute.

       The supreme court described "fundamental errors" in American Family Mutual Insurance Co. v. Royal Insurance Co. of America, 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992), as a failure to meet the requirements of WlS. Stat. § 801.02(1): failing to name a defendant in the summons and complaint, serving the defendant with an unauthenticated copy, or failing to serve the authenticated copy of the summons and complaint within sixty days after filing. See id. at 533-34. We note that, although this description of fundamental errors is not exhaustive, the State did not commit any of the three errors cited in American Family Mutual Insurance Co. The notice names Gautschi, it was given to him in a timely manner, and, unlike § 801.02(1), WlS. Stat. § 343.305(9)(a) contains no authentication requirement. ("The officer shall issue a copy of the notice of intent to revoke the privilege to the person and submit or mail a copy with the person's license to the circuit court....") Id.

       We do not conclude that the State could always demonstrate the lack of prejudice stemming from a notice worded as was Gautschi's. For example, the recipient of a similarly worded notice, who believes that the officer lacked grounds to stop and arrest him or her for OMVWI, may suffer prejudice if the person fails to file a timely request for a hearing because he or she did not understand that the issue could be raised at a refusal hearing. We suggest, therefore, that the Department of Transportation consider revising the notice form to more accurately reflect the issues that may be raised under WlS. Stat. § 343.305(9)(a)5.a.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph Scaccio III, Defendant-Appellant.
    Court of Appeals

      Nos. 99-3101-CR, 00-0924.

      Submitted on briefs July 20, 2000.

    Decided November 9, 2000.

    2000 WI App 265
    (Also reported in 622 N.W.2d 449.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jim D. Scott of Michael Ablan Law Firm, S.C. of La Crosse.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
    Before Dykman, P.J., Deininger, J., and William Eich, Reserve Judge.
   DYKMAN, P.J.

¶ 1. Joseph Scaccio appeals from a judgment sentencing him to five years in prison and an order denying his motion to modify the sentence. He argues that the trial court erred in failing to fully consider his motion to modify his sentence on its merits. The State contends that Scaccio's motion was untimely because he failed to appeal the original judgment of conviction. We conclude that Scaccio's motion to modify was timely because a defendant may take a direct appeal from a subsequent judgment of conviction entered after probation revocation, although the appeal is limited to issues first raised by the post-revocation sentencing hearing and subsequent judgment. Because Scaccio properly moved to modify his sentence, he was entitled to a determination of whether his sentence should be modified because of a "new factor," not just whether the sentencing court erroneously exercised its discretion. However, we conclude that no new factor was present and that the trial court properly exercised its discretion in sentencing. Therefore, we affirm.

I. Background

¶ 2. On March 7, 1997, Scaccio was convicted of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2) (1997-98). In the original judgment of conviction, Scaccio received five years' probation. Two years later, the Division of Hearings and Appeals revoked Scaccio's probation. After a sentencing hearing, the trial court entered a second judgment of conviction dated June 14,1999, sentencing Scaccio to five years in prison.

¶ 3. Scaccio moved to modify his prison sentence. The motion indicated that he was seeking relief under Wis. Stat. Rule 809.30, which sets out the procedure for appeals and certain postconviction motions in felony cases. At a November 10 hearing on the motion, the State argued that the motion was untimely. The trial court apparently agreed with the State, ruling that Scaccio missed the deadline to move for modification of his sentence as a matter of right under WlS. STAT. § 973.19. The trial court addressed Scaccio's motion, but treated it as a request only for review of the sentence for an erroneous exercise of discretion. The trial court then concluded that it had not erroneously exercised its discretion in sentencing Scaccio. Scaccio appeals.

II. Analysis

A. Direct Appeal from a Subsequent Judgment of Conviction

¶ 4. To obtain review of a sentence in the trial court as of right, a defendant must move for sentence modification under Wis. Stat. Rule 809.30 or Wis. Stat. § 973.19. See State v. Hayes, 167 Wis. 2d 423, 425-26, 481 N.W.2d 699 (Ct. App. 1992). The facts here are undisputed, and whether Scaccio has properly appealed and moved for sentence modification presents a question of appellate jurisdiction and statutory interpretation. These are both questions of law that we examine de novo. See Reginald D. v. State, 193 Wis. 2d 299, 305-06, 533 N.W.2d 181 (1995) (statutory interpretation); State v. Bratrud, 204 Wis. 2d 445, 448, 555 N.W.2d 663 (Ct. App. 1996) (jurisdiction).

¶ 5. The procedure under WlS. STAT. § 973.19 differs depending on whether the defendant has first initiated procedures under Wis. Stat. Rule 809.30. Section 973.19 provides, in relevant part:

(l)(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
(b) A person who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).
(5) By filing a motion under sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30 (2).

Thus, § 973.19 provides two alternative ways for a defendant to attack a sentence. See State v. Norwood, 161 Wis. 2d 676, 681, 468 N.W.2d 741 (Ct. App. 1991). One way is for a defendant to move for modification of the sentence under § 973.19(l)(a). See id. Under § 973.19(l)(a), a defendant does not have to request the preparation of transcripts and may obtain a faster decision from the trial court. See id: However, a defendant proceeding under § 973.19(l)(a) forfeits the opportunity to take a "full blown appeal" that would allow a challenge of issues in addition to the sentence modification. Id. Section 973.19(1)(a) operates independently of Rule 809.30 and allows a defendant to move for sentence modification only within ninety days from the date of sentencing. The other option open to a defendant is to first initiate an appeal with the modification of sentence as one issue. See id. In that case, the defendant proceeds under § 973.19(1)(b), after requesting the preparation of transcripts and otherwise following the regular appeal format set out in Rule 809.30. See id.

¶ 6. Scaccio argues that he properly moved for sentence modification under WlS. STAT. § 973.19(l)(b), which, in reference to Wis. Stat. Rule 809.30(2)(h), allows a defendant sixty days from service of transcripts to file a notice of appeal or motion for postconviction relief if that defendant had timely initiated postconviction relief under Rule 809.30(2). The State contends that § 973.19(l)(b) was not available to Scaccio because he missed the deadline to file his Rule 809.30(2) direct appeal. The backbone of the State's position is that the time to initiate a direct appeal under Rule 809.30 rims from the original judgment of conviction only. We disagree and conclude that a defendant is entitled to a Rule 809.30 direct appeal from a subsequent judgment of conviction entered after probation revocation. Therefore, Scaccio was properly proceeding under § 973.19(l)(b) because he followed the RULE 809.30(2) time limits, counting from the date of the subsequent judgment.

¶ 7. Both Scaccio and the State point to two cases in support of their positions: State v. Drake, 184 Wis. 2d 396, 515 N.W.2d 923 (Ct. App. 1994), and State v. Tobey, 200 Wis. 2d 781, 548 N.W.2d 95 (Ct. App. 1996). Scaccio argues that the rule from Drake and Tobey is simply that a defendant may not challenge his or her original judgment of conviction after the time to appeal that judgment has passed. The State contends that under Drake and Tobey, a defendant has only one opportunity for a direct appeal under Wis. Stat. Rule 809.30, and that opportunity arises only in connection with the original judgment of conviction. We conclude that Scaccio's interpretation of Drake and Tobey is the better one.

¶ 8. In Drake, the trial court imposed four years' probation on Timothy Drake after he pleaded guilty to physical abuse of a child in 1990. Drake, 184 Wis. 2d at 397-98. After Drake's probation was revoked in May 1992, he returned to court for sentencing. See id. at 398. Before the court imposed the prison sentence, Drake moved to withdraw his guilty plea and for a trial. See id. The court denied the motion and imposed a sentence of three years in prison on October 30,1992. See id. Drake filed a notice of intent to pursue postcon-viction relief under Wis. Stat. Rule 809.30(2)(b) and appealed from the judgment of conviction imposing the prison sentence. See id. All of Drake's arguments on appeal related to whether he should have been allowed to withdraw his guilty plea. See id. We concluded that we lacked jurisdiction to decide those issues. See id. We reasoned that had Drake wished to challenge the validity of his plea, he could have taken a direct appeal from the December 1990 judgment of conviction. See id. at 399. By the time Drake moved to withdraw his guilty pea, the deadline for filing a direct appeal from that judgment "had long since expired." Id.

¶ 9. In Tobey, Steven Tobey was convicted of receiving stolen property after pleading no contest. Tobey, 200 Wis. 2d at 782-83. In October 1993, he was placed on probation. See id. at 783. Tobey's probation was subsequently revoked, and he was sentenced to nine months in jail on May 3, 1995. See id. On May 10, Tobey filed a notice of intent to pursue postconviction relief. See id. He then filed a postconviction motion, alleging that he was not adequately advised of his right to counsel when the court received his October 1993 plea and that he did not voluntarily and intelligently waive his right to counsel at that time. See id. We concluded that Tobey was untimely under WlS. STAT. Rule 809.30 because he failed to file a notice of intent to pursue postconviction relief within twenty days of the October 1993 sentencing. See id. at 784. We reasoned that: "Tobey chose to begin serving his probation without objecting to the events surrounding his 1993 conviction. Therefore, he cannot now raise these [right to counsel] issues because he is dissatisfied with the outcome of his sentencing after probation revocation." Id.

¶ 10. The rule we derive from Drake and Tobey is that a defendant cannot use Wis. Stat. Rule 809.30 in conjunction with WlS. STAT. § 973.19(l)(b) to raise issues that go back to the original judgment of conviction. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. See Drake, 184 Wis. 2d at 399-400. However, the decisions in Drake and Tobey do not preclude a defendant from taking a direct appeal from a subsequent judgment of conviction. A defendant facing a new judgment after revocation of probation must have an opportunity to fully litigate issues initially raised by the events of the resentencing hearing and the judgment entered after that hearing.

¶ 11. Our conclusion that a defendant's direct appeal is not limited to the initial judgment of conviction is supported by State ex rel. Marth v. Smith, 224 Wis. 2d 578, 592 N.W.2d 307 (Ct. App. 1999). Citing to Drake and Tobey, the Marth court explained: "A defendant may appeal a sentence imposed after revocation of probation although he or she is barred from challenging the underlying judgment of conviction unless relief was timely sought from that conviction." Marth, 224 Wis. 2d at 582 n.5. The Marth court added that "[the defendant's sentence after revocation could have been challenged under Rule 809.30." Id. at 583-84.

¶ 12. While the Marth court was not addressing the same question as that before us today, it made the assumption that a defendant may take a direct appeal from a subsequent judgment of conviction. This assumption was and is the most proper assumption to make. From the time this court was created, WlS. STAT. § 808.03(1) has provided that "[a] final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law." See also State v. Smythe, 225 Wis. 2d 456, 464, 592 N.W.2d 628 (1999). A subsequent judgment of conviction after probation revocation is as final a judgment as any other. We therefore conclude that Scaccio properly appealed the subsequent judgment of conviction and properly moved for sentence modification under WlS. Stat. § 973.19(l)(b).

B. Scaccio's Sentence

¶ 13. When proceeding under WlS. Stat. § 973.19, a defendant's sentence may be modified if there is some "new factor." State v. Coolidge, 173 Wis. 2d 783, 788, 496 N.W.2d 701 (Ct. App. 1993). Because the trial court concluded that Scaccio's motion was untimely under § 973.19, it only considered whether the sentencing court had erroneously exercised its discretion. The trial court did not engage in a "new factor" analysis. We have concluded that Scaccio was properly proceeding under § 973.19(l)(b), therefore we address the question of whether a new sentencing factor merited modification of his sentence. We need not remand Scaccio's case to the trial court as he requests. Whether a new factor exists presents a question of law that we review de novo. See State v. Johnson, 210 Wis. 2d 196, 203, 565 N.W.2d 191 (Ct. App. 1997).

¶ 14. "A new factor is a fact that is highly relevant to the imposition of sentence but was not known to the sentencing judge either because it did not exist or because the parties unknowingly overlooked it." Johnson, 210 Wis. 2d at 203. "There must also be a nexus between the new factor and the sentence; the new factor must operate to frustrate the sentencing court's original intent when imposing sentence." Id.

¶ 15. At the motion hearing, Scaccio noted several circumstances which he claimed justified a modification of his sentence. He explained that he had become involved in Alcoholics Anonymous and had completed his high school equivalency diploma. He also stated that he had not been in any trouble in prison, even though others had tried to start fights with him. While these are circumstances that did not exist at the time of sentencing, none of them constitute a new sentencing factor. We have previously held that "post-sentencing conduct, including favorable progress in a prison rehabilitation system, does not constitute a new factor for the purposes of modification of the length of a prison sentence." State v. Ambrose, 181 Wis. 2d 234, 240, 510 N.W.2d 758 (Ct. App. 1993).

¶ 16. At the motion hearing, Scaccio also pointed out that it no longer appeared that he would be released early on parole, something the trial court had stated was "likely" at the time it imposed the five-year prison sentence. We are not convinced that a possible change in time to parole meets the new factor nexus test under the facts here. At the time it sentenced him to prison, the court noted that it had originally determined that Scaccio might benefit from probation rather than a prison term. However, the court explained, Scaccio had "continued to get [himself] in physically assaultive situations" and to otherwise violate conditions of parole. The court then concluded that probation was not serving Scaccio's rehabilitative needs and that a prison sentence was the proper alternative. That Scaccio may not be released on early parole can hardly be said to frustrate the sentencing court's intention that Scaccio serve a five-year prison term to best benefit both his own rehabilitative needs as well as the public safety. We conclude that Scaccio has not presented any "new factor" warranting modification of his sentence.

¶ 17. Even without the presence of a new factor, a trial court may still review a sentence to determine whether the sentencing court erroneously exercised its discretion. See State v. Ralph, 156 Wis. 2d 433, 438, 456 N.W.2d 657 (Ct. App. 1990). We apply the same standard of review. See State v. Giebel, 198 Wis. 2d 207, 220, 541 N.W.2d 815 (Ct. App. 1995). If the sentence is "unduly harsh or unconscionable," the sentencing court has erroneously exercised its discretion, and the sentence may be reduced. Ralph, 156 Wis. 2d at 438-39 (quoting Cresci v. State, 89 Wis. 2d 495, 504, 278 N.W.2d 850 (1979)). The defendant must show an "unreasonable or unjustifiable basis in the record for the sentence complained of." State v. Thompson, 146 Wis. 2d 554, 565, 431 N.W.2d 716 (Ct. App. 1988). We are to presume that the sentencing court acted reasonably. See id.

¶ 18. Even though it did not apply the new factor test, the trial court reviewed Scaccio's sentence and concluded that the sentencing court properly exercised its discretion. We agree. We first note that the maximum prison term for second-degree sexual assault of a child under WlS. Stat. § 948.02(2) at the time that Scac-cio was convicted was twenty years, fifteen more than Scaccio received. See Wis. Stat. §§ 939.50(3)(bc) and 948.02(2). A sentence well within the limits of the maximum sentence is unlikely to be unduly harsh or unconscionable. See State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983). Therefore, a five-year prison term for second-degree sexual assault of a child will rarely constitute an erroneous exercise of sentencing discretion. In addition, the sentencing court considered a number of the factors relevant to sentencing in deciding that the five-year prison term was a reasonable sentence. Finally, Scaccio has not asserted that the sentencing court had an unreasonable or unjustifiable basis for the five-year prison sentence. We therefore conclude that the sentencing court did not erroneously exercise its discretion.

By the Court. — Judgment and order affirmed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. Rule 809.30 reads, in part:
      (Appeals in felony cases). (1) DEFINITIONS. In this section:
      (a) "Postconviction relief' means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under s. 973.19 or 974.06....
      (b) "Sentencing" means, in a felony or misdemeanor case, the imposition of a sentence, fine or probation....
      (2) Appeal or postconviction motion by defendant, (a) A defendant seeking postconviction relief in a felony case shall comply with this section. Counsel representing the defendant at sentencing shall continue representation by filing a notice under par. (b) if the defendant desires to pursue postconviction relief unless sooner discharged by the defendant or by the trial court.

       The difference is important. A motion for modification under WlS. Stat. § 973.19 allows the court to modify the sentence based upon the presence of a "new factor," State v. Coolidge, 173 Wis. 2d 783, 788, 496 N.W.2d 701 (Ct. App. 1993), not just review the sentence for an erroneous exercise of discretion.

       On November 30, Scaccio filed a notice of appeal from the June 14 judgment of conviction and from the November 10 decision denying his motion to modify. At that time, there was no written order entered pursuant to the November 10 decision, so we dismissed the part of Scaccio's November 30 appeal from that decision for lack of jurisdiction. A postconviction order must be reduced to writing and filed with the clerk of court before this court has jurisdiction to review the ruling. See State v. Malone, 136 Wis. 2d 250, 257-58, 401 N.W.2d 563 (1987). On February 3, 2000, the trial court entered a written order denying Scaccio's motion to modify his sentence, and Scaccio took a new appeal from the February 3 order. Scaccio then moved to consolidate that appeal from the February 3 order with his appeal from the June 14, 1999 judgment of conviction. We granted the motion because the appeals involve the same case, the same parties, and the same underlying circumstances.

       Wisconsin Stat. Rule 809.30(2) reads, in part:
      (b) Within 20 days of the date of sentencing, the defendant shall file in the trial court and serve on the district attorney a notice of intent to pursue postconviction relief....
      (g) The court reporter shall file the transcript with the trial court and serve a copy of the transcript on the defendant within 60 days of the ordering of the transcript. Within 20 days of the ordering of a transcript of postconviction proceedings brought under sub.
      (2) (h), the court reporter shall file the original with the trial court and serve a copy of that transcript on the defendant. The reporter may seek an extension under s. 809.16 (4) for filing and serving the transcript.
      (h) The defendant shall file a notice of appeal or motion seeking postconviction relief within 60 days of the service of the transcript.

       The judgment of conviction sentencing Scaccio to five years in prison was dated June 14,1999. Two days later, Scaccio filed his notice of intent to pursue postconviction relief. The last transcript was filed with the circuit court on September 13. Scaccio filed his postconviction motion on October 28. Therefore, he met the deadlines set out in WlS. Stat. Rule 809.30(2) if the time limits are counted as running from the June 14, 1999 judgment.

       Under WlS. STAT. Rule 809.30, a notice of intent to pursue postconviction relief must be filed within twenty days of sentencing, and "sentencing" includes the imposition of probation. See State v. Tobey, 200 Wis. 2d 781, 784, 548 N.W.2d 95 (Ct. App. 1996).

       The maximum prison term has since increased. See 1997 Wis. Act 283, § 323.

       In imposing sentence, the court considers "the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." McCleary v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512 (1971). The sentencing court may also consider:
      the defendant's criminal record; history of undesirable behavior patterns; personality, character and social traits; results of a presentence investigation; vicious or aggravated nature of the crime; degree of culpability; demeanor at trial; age, educational background and employment record; remorse, repentance and cooperativeness; need for close rehabilitative control; and rights of the public.

        State v. Curbello-Rodriguez, 119 Wis. 2d 414, 433, 351 N.W.2d 758 (Ct. App. 1984).


author: EICH, Reserve Judge.

text:
    Jonathan Reuter, Jeffrey Reuter, and Shelley Reuter, Plaintiffs-Respondents, v. M. Theresa Murphy, Grinnell Mutual Insurance Company, Darrell W. Turcotte, H.O. Wolding, Inc., Liberty Mutual Insurance Company, Defendants, Wausau Insurance Company, Defendant-Appellant, Rural Security Life Insurance Company, and Community Financial and Insurance Corporation, Defendants-Respondents.
    Court of Appeals

      No. 99-3349.

      Submitted on briefs September 12, 2000.

    Decided November 9, 2000.

    2000 WI App 276
    (Also reported in 622 N.W.2d 464.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Robert J. Dreps of LaFol-lette Godfrey & Kahn of Madison.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Michael R. Fox of Fox & Fox, S.C., of Madison.

      Before Dykman, P.J., Deininger, J., and William Eich, Reserve Judge.

      Petition to review denied.

   EICH, Reserve Judge.

¶ 1. Wausau Insurance Company appeals from a judgment awarding Jonathan Reuter substantial damages for injuries he received when the car in which he was being driven home from school was involved in an accident. The car was being driven by M. Theresa Murphy, who had an oral agreement with the Southwestern Wisconsin Community School District under which she was paid a fixed sum for transporting children to and from school, using her own vehicle. The agreement required Murphy to insure her car, and the district paid for necessary additional insurance.

¶ 2. In addition to suing the driver of the other car, Reuter (and his parents) sued Murphy and her insurer —as well as the district and its insurer, Wausau — alleging, among other things, that, at the time of the accident, Murphy was the district's agent and/or employee. The defendants moved for partial summary judgment declaring that WlS. Stats. §§ 345.05(3) and 893.80(3) (1997-98) , which limit the damages recoverable against government bodies, were applicable to Reuter's claims. Attempting to avoid the limitations, Reuter amended his complaint to allege that Murphy was an independent contractor. He also dismissed the district from the action. The court, after ruling that disputed factual issues existed — and holding an evidentiary hearing — concluded that Murphy was an independent contractor and that, as a result, the statutory damage limitations were inapplicable.

¶ 3. Wausau then moved for summary judgment on two grounds. First, it claimed there was no coverage under its policy because Murphy's car was neither owned by the district nor named in the policy — and, further, that, contrary to Reuter's argument, the "omnibus coverage" statute, WlS. Stat. § 632.32(3)(a), did not extend coverage to Murphy's car. Wausau also argued that the statutory damage limitation applied even if the district was not a party to the action and/or Murphy was an independent contractor.

¶ 4. The court denied Wausau's motion and granted partial summary judgment to Reuter, holding that: (1) the rule of issue preclusion barred Wausau from challenging the application of the omnibus statute to its policy because of its involvement in a prior case in which that issue had been resolved against it; (2) in any event, the statute mandates coverage in this instance; and (3) the statutory damage limitations apply only to school districts and cannot be claimed by Murphy or Wausau.

¶ 5. The parties reached a settlement fixing Reu-ter's damages at $1.8 million and releasing Murphy from the action after her insurer paid its policy limits. Reuter preserved his claims against the other driver and Wausau. This appeal, as indicated, concerns only Wausau's challenge to the partial summary judgment entered against Wausau.

¶ 6. We conclude that, while the circuit court erred in holding that Wausau was barred from litigating its no-coverage claim under the rule of issue preclusion, the court's alternative ruling that, as a matter of law, the omnibus statute extends coverage to Murphy in this case was correct. We also conclude, as did the circuit court, that the statutory damage limitations do not apply to Wausau. We therefore affirm the judgment.

Issue Preclusion

¶ 7. The rule of issue preclusion bars relitigation of issues of law or fact that have been litigated in a previous action. See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). In order for the bar to apply, the party against whom it is being asserted must have been a party to the prior action (or in privity with a party), the issue must have been "actually litigated" in that action, and application of the rule in the case at hand must comport with "principles of fundamental fairness." Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 225-26, 594 N.W.2d 370 (1999). The rule is designed to further the interest in judicial economy by limiting the relitigation of issues that have been tried and decided in a previous action. It is, however, a rule in which courts may "consider a [broad] array of equitable factors" in deciding whether to apply it in a given case. Lindas v. Cady, 183 Wis. 2d 547, 559, 515 N.W.2d 458 (1994).

¶ 8. Wausau argues that the circuit court erred in concluding that the rule bars consideration of the application of the omnibus statute to its policy in this action because it was a party to an earlier action in which that issue was resolved against it. The statute, which we discuss in greater detail below, generally requires that coverage available to the named insured must apply equally to persons using vehicles described in the policy with the insured's permission. The earlier case involved a school-bus accident in which Randall Kettner was injured. The owner/driver of the bus, Eugene Conradt, was a contract driver for the local school district, and the district was insured under a Wausau policy which, like the policy in this case, covered "non-owned buses . . . hired or borrowed [by the district]," but excluded coverage when the hired vehicle was being driven by its owner. We held in that case that the omnibus statute had the effect of extending coverage to vehicles that were not owned by the district. See Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 742, 530 N.W.2d 399 (Ct. App. 1995). Because we could not tell from the record, however, whether, as a matter of fact, such coverage would extend to Conradt's bus, we remanded to the trial court to determine that issue. See id. at 743. On remand, the trial court ruled that the policy covered the bus and, on a second appeal, we agreed, holding that Conradt's bus fell into the category of "hired" vehicles described in the policy, and that coverage was thus mandated by the statute. See Kettner v. Conradt, No. 96-1749, unpublished slip op. at 5-6 (WI App. Apr. 29,1997). That opinion, however, was not published and is thus nonprecedential.

¶ 9. We reject Reuter's argument that Wausau's participation in the Kettner case precludes it from litigating coverage here. While Wausau was indisputably a party to the Kettner appeals, and while one of the issues in that case was the applicability of the omnibus statute to Wausau's policy, we do not consider it either fair or legally appropriate to apply the rule of issue preclusion here because we think the case comes within the well-recognized "issue-of-law" exception to the rule.

¶ 10. In Michelle T. v. Crozier, 173 Wis. 2d 681, 689 n.10, 495 N.W.2d 327 (1993), the supreme court, discussing the "fundamental fairness" of applying issue preclusion to one of the parties (the court eventually decided that it was fair to do so), recognized that several exceptions to the rule found in RESTATEMENT (Second) of Judgments (1980) were relevant to the fairness inquiry. And one of those exceptions states that, even though a particular issue may have been litigated and determined in the prior action, relitigation is not precluded if "[t]he issue is one of law and . . . the two actions involve claims that are substantially unrelated." Id., § 28, p. 273. That the instant case is one coming within the terms of the exception is apparent, we think, from the following RESTATEMENT commentary:

A rule of law declared in an action between two parties should not be binding on them for all time, especially as to claims arising after the first proceeding has been concluded, when other litigants are free to urge that the rule should be rejected. Such preclusion might unduly delay needed changes in the law and might deprive a litigant of a right that the court was prepared to recognize for other litigants in the same position.

Id., cmt. b.

¶ 11. The circuit court concluded that the issue-of-law exception did not apply "because the claims involved in Kettner and this case are virtually the same." We do not dispute that the issue in the Kettner cases — the applicability of the omnibus statute — was virtually identical. But we agree with Wausau that the claims are not identical. They arise from a different accident, involving a different victim, a different negligent driver, a different school district and different facts. The claims in the Kettner cases and the claims in this case are distinct and discrete, and we do not think it would be fair — much less "fundamentally fair" — to preclude Wausau from challenging that legal interpretation in a subsequent case.

Application of the Omnibus Statute

¶ 12. Wisconsin Stat. § 632.32 provides as follows:

(3) REQUIRED PROVISIONS. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.
(5) PERMISSIBLE PROVISIONS
(a) A policy may limit coverage to use that is with the permission of the named insured or, if the insured is an individual, to use that is with the permission of the named insured or an adult member of the insured's household.

¶ 13. Because all liability policies issued in Wisconsin must provide at least as much protection as the law requires, the statute mandates coverage even where the express terms of a policy state the opposite. See Wegner v. Heritage Mut. Ins. Co., 173 Wis. 2d 118, 124, 496 N.W.2d 140 (Ct. App. 1992). In that situation, the policy will be enforced as though it had been written in accordance with the statute. See Amidzich v. Charter Oak Fire Ins. Co., 44 Wis. 2d 45, 53, 170 N.W.2d 813 (1969).

¶ 14. The applicable provisions of Wausau's policy are as follows:

1. WHO IS AN INSURED
The following are "insureds:"
a. You for any covered "auto."
b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except:
(1) The owner or anyone else from whom you hire or borrow a covered "auto." (Emphasis added.)

¶ 15. We have no doubt that Murphy's car — like Conradt's bus in Kettner — was a "hired" vehicle within the plain meaning of the Wausau policy. It is equally plain, we think, that the policy terms would exclude coverage in this case under the "owner/driver" exclusion in paragraph b(l). And since, under the omnibus statute, the coverage enjoyed by the named insured {e.g., the district) must apply in the same manner to anyone using the described vehicle for a purpose and in a manner permitted by the policy {e.g., transporting children to and from a district school), we hold that the statute extends coverage to Murphy.

The Statutory Damage Limitations

¶ 16. As we have said, the circuit court ruled that because Murphy was an independent contractor, the statutory damage limitations applicable to actions against public bodies did not apply to Reuter's claims. Wausau challenges that ruling, arguing that Murphy was not an independent contractor — and that even if she was, the limitations are still applicable. We disagree on both counts.

¶ 17. Although the existence of a master-servant (or independent contractor) relationship is usually a question of fact, where, as here, the facts underlying the relationship between Murphy and the district are undisputed, the question is one of law, subject to independent review on appeal. See Nottelson v. DILHR, 94 Wis. 2d 106, 116-17, 287 N.W.2d 763 (1980). Even so, we have often recognized that we may, and often do, benefit from the trial court's analysis of the legal issues, see Lomax v. Fiedler, 204 Wis. 2d 196, 206, 554 N.W.2d 841 (Ct. App. 1996); and this is such a case.

¶ 18. The dominant factor in determining whether an individual is a servant or an independent contractor is whether the alleged "master" has the "right to control the details of the [servant's] work." Madison Newspapers, Inc. v. DOR, 228 Wis. 2d 745, 764, 599 N.W.2d 51 (Ct. App. 1999). In this case, the circuit court undertook an extensive and well-reasoned examination of all facts bearing on the relationship between Murphy and the school district in arriving at its conclusion that Murphy was an independent contractor. Murphy had no written contract or oral agreement with the school district regarding the particulars of her job except for oral directions as to which students to pick up and at what times. She chose her own routes without restriction. She had no supervisor and received no performance evaluations. There were no written rules governing her conduct while transporting pupils. The maintenance of her vehicle was left to her discretion, and the vehicle was not subject to safety inspections. In this light, Murphy is very much in the same position as the milk hauler in Carothers v. Bauer, 23 Wis. 2d 15, 126 N.W.2d 758 (1964), whose contract with the dairy, while setting out the required pick-ups, etc., left the route and all other aspects of the driver's duties to his discretion. The supreme court held in that case that the driver was an independent contractor and, as a result, the dairy could not be held liable (on respondeat superior grounds) for his negligence in colliding with another vehicle while on the route. See id. at 25-27.

¶ 19. Wausau argues, however, that Wis. Stat. § 121.52(l)(b), which gives school districts the right to control the conduct of persons transporting pupils to and from school, compels us to hold as a matter of law that persons hired to do such work cannot under any circumstances be considered independent contractors. Section 121.52(l)(b) provides as follows:

[T]he school board may adopt additional rules, not inconsistent with law or -with rules of the secretary of transportation or the state superintendent, for the protection of the pupils or to govern the conduct of the person in charge of the motor vehicle used for transportation of pupils for compensation.

¶ 20. As is apparent from its terms, the statute is permissive: it neither governs driver conduct itself nor requires school districts to adopt particular rules to that end. It merely authorizes districts to do so; and, in this instance, the district elected not to. We agree with Wausau that the supreme court stated generally in several decisions in the 1930's and '40's that it is "quite immaterial whether the right to control is exercised by the master so long as he has the right to exercise such control." See Employers Mut. Liab. Ins. Co. v. Industrial Comm'n, 230 Wis. 670, 676, 284 N.W. 548 (1939). But no such right was ever established by the district in this case. The statute states only that the district may, by adopting rules, control the details of the drivers' work. Because the district has not taken any steps to adopt such rules, we do not see how the statute, standing alone, may be said to provide the "right to control" that the law requires in order for a master/servant relationship to exist. Under its agreement with Murphy, the district granted her full discretion to set her own procedures and her own rules for transporting the students to and from school. And the mere existence of Wis. STAT. § 121.52(l)(b) does not change that fact.

¶ 21. Finally, Wausau argues that the damage cap contained in WlS. STAT. § 345.05 should apply even though Murphy is an independent contractor. The statute, which relates to municipal liability for motor vehicle accidents, provides in pertinent part as follows:

(2) A person suffering any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by a municipality, which damage was occasioned by the operation of the motor vehicle in the course of its business, may file a claim for damages against the municipality concerned and the governing body thereof may allow, compromise, settle and pay the claim. In this subsection, a motor vehicle is deemed owned and operated by a municipality if the vehicle is either being rented or leased, or is being purchased under a contract whereby the municipality will acquire title.
(3) A claim under this section shall be filed in the manner, form and place specified in s. 893.80. The limitations under s. 893.80(3) are applicable to a claim under this section, except that the amount recoverable by any person for any damages, injuries or death in any action shall not exceed $250,000.

¶ 22. Alternatively, Wausau contends that the $50,000 limitation for damages recoverable for the negligence of a "government servant" provided by WlS. STAT. § 893.80(3), also applies. The statute provides that:

the amount recoverable by any person for any damages, injuries or death in any action founded on tort against any ... governmental subdivision or agency thereof and against their officers, officials, agents or employes for acts done in their official capacity or in the course of their agency or employment, . . . shall not exceed $50,000.

¶ 23. We specifically held in Kettner, 191 Wis. 2d at 729-30, that neither limitation is applicable where there is no master/servant relationship. As a result, our conclusion that Murphy was an independent contractor, rather than a servant or agent of the district, at the time of the accident, mandates, rejection of Wausau's arguments. If a contract bus driver — or a contract driver using his or her own vehicle — is an independent contractor, then "there is no statute that permits limitations of liability intended for the protection of a municipality's public funds to be transferred from the municipality to an independent contractor with whom the municipality has a business relationship." Id. at 740. That was the result we reached in Kettner, and it is the result we reach here.

By the Court. — Judgment affirmed.

       Murphy was insured by Grinnell Mutual Insurance Company. Grinnell is not a party to the appeal.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The RESTATEMENT provides an analogous illustration:
      A brings an action against the municipality of B for tortious injury. The court sustains B's defense of sovereign immunity and dismisses the action. Several years later A brings a second action against B for an unrelated tortious injury occurring after the dismissal. The judgment in the first action is not conclusive on . . . whether the defense of sovereign immunity is available to B.
      Restatement (Second) of Judgments, § 28, cmt. b, illus. 2 (1980).