author: LOUIS B. BUTLER, JR., J. ANN WALSH BRADLEY, J.

text:
    Anthony R. Anderson and Naomi Anderson, Plaintiffs-Appellants-Petitioners, v. MSI Preferred Insurance Company, Defendant, Accident Fund Company, Defendant-Respondent.
    Supreme Court

      No. 2003AP1880.

      Oral argument December 13, 2004.

      Decided June 2, 2005.

    2005 WI 62
    (Also reported in 697 N.W.2d 73.)

      For the plaintiffs-appellants-petitioners there were briefs by C.M. Bye, Tracy N. Tool, and Bye, Goff & Rohde, Ltd., River Falls, and oral argument by Tracy N. Tool.

    For the defendant-respondent there was a brief by Christopher D. Walther and Walther Law Offices, S.C., Milwaukee, and oral argument by Christopher D. Walther.

   LOUIS B. BUTLER, JR., J.

¶ 1. Anthony and Naomi Anderson ("Anderson") seek review of an unpublished court of appeals decision that concluded the circuit court properly exercised its discretion by awarding Accident Fund Insurance Company nearly $7,500 in attorney fees and costs as part of the reasonable costs of collection in a third-party settlement distribution under Wis. Stat. § 102.29(1) (200l-02).Anderson v. MSI Preferred, Ins. Co., No. 2003AP1880, unpublished slip op. (Wis. Ct. App. Feb. 10, 2004). Anderson argues this court should reverse the court of appeals' decision on either of two grounds: (1) conclude that for a worker's compensation carrier's attorney to join in the pressing of the claim against the third-party tortfeasor requires the attorney to demonstrate that his or her activities substantially contributed to obtaining recovery from the third party; or (2) agree that Accident Fund's failure to produce any evidence of hours worked and rate charged requires overturning the circuit court's exercise of discretion.

¶ 2. We decline Anderson's invitation to alter the existing law for what is required to join in the pressing of a claim against a third party. In short, because the worker's compensation carrier has the same right to bring, and an equal voice in prosecuting, a third-party claim, and because the worker's compensation carrier's attorney does not represent the employee, the attorney is entitled to recover reasonable attorney fees and costs associated with representing the worker's compensation carrier as part of the reasonable costs of collection under Wis. Stat. § 102.29(1).

¶ 3. However, we conclude that the circuit court erroneously exercised its discretion by failing to determine whether $17,700 in total fees and costs on a $25,000 settlement constitutes the reasonable costs of collection in this case. Therefore, we reverse the court of appeals' decision and remand this matter to the circuit court for a hearing to determine what the reasonable costs of collection are and how those costs are to be apportioned between the attorneys.

HH

¶ 4. On October 15, 2001, Anderson was injured in a motor vehicle accident caused by Shawn Jones. It is undisputed that Anderson was in the course of his employment at the time of the accident and that his injuries arose out of his employment. Jones was insured by Acceptance Insurance Co. and had a policy limit of $25,000. Accident Fund paid worker's compensation benefits and medical expenses totaling $8,711.98.

¶ 5. In March 2002, Accident Fund referred the case to Walther Law Offices, SC, to seek reimbursement for the payments it made to Anderson. See Wis. Stat. § 102.29(1). On July 11, 2002, Accident Fund directed Walther to take an active role in managing the claim to protect its reimbursement interest.

¶ 6. On July 23, 2002, Anderson commenced a third-party tort action against Jones, Acceptance Insurance Co., and MSI Preferred Insurance Co. (Jones' underinsured motorist carrier), pursuant to Wis. Stat. § 102.29(1). However, Anderson did not name Accident Fund as a party, even though § 102.29(1) gives both the employee and the worker's compensation carrier the same right to make the third-party claim and requires each to "give to the other reasonable notice and opportunity to join in the making of such claim ...."

¶ 7. In August 2002, Accident Fund began searching for Jones' insurer. After learning Jones' insurer was Acceptance Insurance, Accident Fund also learned that Anderson commenced a Wis. Stat. § 102.29(1) claim. Concerned with whether Anderson would protect its interests, Accident Fund prepared a motion to intervene, but Anderson voluntarily joined Accident Fund as a party on October 9, 2002.

¶ 8. The claim against Jones was mediated on March 3, 2003, and Acceptance Insurance Co. offered its policy limits of $25,000. The parties did not resolve the distribution of the proceeds under Wis. Stat. § 102.29(1).

¶ 9. Just over one month later, on April 17, Anderson filed a motion to approve the settlement and distribution of the proceeds. The motion listed Accident Funds' costs of collection as $3,547.13, a figure Anderson received from Accident Fund a month earlier during the mediation. Accident Fund opposed the distribution, asking that the court award it $7,472.97 in costs of collection. The parties filed briefs in support of their positions. On May 20, the Barron County Circuit Court, Honorable James C. Babler, approved the $25,000 settlement but set a hearing for a determination on the distribution of the proceeds. The court required the parties to submit affidavits and any other necessary documents to support their fees and costs.

¶ 10. Anderson submitted an affidavit that stated Accident Fund indicated its costs of collection were only $3,547.13 at the mediation. Anderson also attached a copy of the attorney's contingency fee agreement, which provided for a one-third recovery plus out-of-pocket expenses. The affidavit expressed Anderson's belief that its contingency fee was reasonable and then generally listed the activities taken in pursuing this claim.

¶ 11. Accident Fund also submitted an affidavit. It contested Anderson's assertion regarding its costs of collection, claiming that it never suggested its costs were actually $3,547.13. Accident Fund stated that that amount was a settlement offer to resolve its costs of collection, an offer Anderson rejected. Accident Fund further stated that the mediation and settlement occurred as a result of its persistence on having, and its argument during, mediation. As was the case with Anderson's affidavit, Accident Fund's submissions cursorily describe the legal work done and did not contain the numbers of hours worked or the fee charged. Accident Fund did not include an itemized billing of costs.

¶ 12. At the hearing on June 26, Anderson claimed it was unreasonable for Accident Fund to claim an additional $3,000 in fees that were apparently incurred from the mediation to the filing of the affidavits. Anderson took issue with Accident Funds' failure to supply the court with any proof regarding the number of hours billed, an itemization of what work was done, when it was done, and the hourly rate at which it was done. Finally, Anderson argued that it was unreasonable for Accident Fund to claim over $7,000 as costs of collection to secure an $8,711.98 reimbursement interest.

¶ 13. Accident Fund reiterated that it simply offered to settle the fees and costs at the mediation for $3,547.13, a figure that represented the fees and costs incurred prior to attending the mediation session. Although Accident Fund knew that there could be additional costs associated with attending the mediation, it stated it was willing to compromise and not claim those additional amounts. From the close of the mediation to the date of the hearing, Accident Fund averred it now had incurred $7,472.97 in total fees and costs.

¶ 14. Accident Fund further explained that some of its fees were incurred because Anderson did not provide it with notice of the suit as required by Wis. Stat. § 102.29(1). Accident Fund indicated it was suspicious of Anderson following this failure and did not trust him to protect its interest. What those fees and costs were, however, was not developed.

¶ 15. The circuit court found that Anderson's failure to join Accident Fund from the beginning was not intentional or based on bad faith, but did result in Accident Fund becoming distrustful of Anderson and how the case was to be handled. The court then concluded it was required to approve Accident Fund's fees of $7,472.97. The court expressed regret at having to do so, but stated the high costs were associated with Anderson's handling of the case from the beginning.

¶ 16. Anderson appealed, arguing that the court erred by concluding it was required to award Accident Fund's fees and costs, as opposed to awarding the reasonable costs of collection, and that there was an insufficient factual basis to sustain that award. The court of appeals affirmed. The court noted that the circuit court requested affidavits detailing the basis for each party's costs and read the affidavits at least three times. Anderson, No. 2003AP1880, unpublished slip op., ¶ 12.

¶ 17. Because the circuit court indicated it read the affidavits multiple times, the court of appeals concluded that the circuit court implicitly based its decision on them. Id., ¶ 18. The court of appeals then turned to the relevant factors in SCR 20:1.5(a) and evaluated them in light of the record. Id., ¶¶ 19-24. The court concluded the record revealed a rational basis for the circuit court's conclusion that Accident Fund's fees were reasonable. Id., ¶ 24. Therefore, the court concluded the award was not the product of an erroneous exercise of discretion. Id. We accepted Anderson's petition for review, and we reverse.

II

¶ 18. This case requires us to interpret Wis. Stat. § 102.29(1). Statutory interpretation presents a question of law we review de novo. German v. DOT, 2000 WI 62, ¶ 7, 235 Wis. 2d 576, 612 N.W.2d 50. Our goal is to discern the intent of the legislature. Id. The purpose of statutory interpretation is to determine what a statute means so that it may be given its full, proper, and intended effect. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with th-e statute's language because we assume that the legislature's intent is expressed within the words it used. Id., ¶ 45. Generally, language is given its common, ordinary, and accepted meaning. Id. If the statute's meaning is plain, we ordinarily stop the inquiry. Id.

¶ 19. Our review of the circuit court's value of reasonable attorney fees and costs is limited to whether the circuit court properly exercised its discretion. See Meyer v. Michigan Mut. Ins. Co., 2000 WI App 53, ¶ 11, 233 Wis. 2d 493, 609 N.W.2d 167. A proper exercise of discretion requires the circuit court to employ "a logical rationale based on the appropriate legal principles and facts of record." Id. (citation and quotation omitted). As this court recently recognized, "We give deference to the circuit court's decision because the circuit court is familiar with local billing norms and will likely have witnessed first-hand the quality of the service rendered by counsel." Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 22, 275 Wis. 2d 1, 683 N.W.2d 58. We will uphold the circuit court's determination unless it erroneously exercised its discretion. Id. "If the circuit court proceeds on an erroneous interpretation of the law, the exercise of discretion is erroneous." Theis v. Midwest Sec. Ins. Co., 2000 WI 15, ¶ 8, 232 Wis. 2d 749, 606 N.W.2d 162.

III

¶ 20. Wisconsin Stat. § 102.29(1) "was enacted to direct the courts in the distribution of proceeds of third-party tort actions." Nelson v. Rothering, 174 Wis. 2d 296, 303, 496 N.W.2d 87 (1993). The division of settlement proceeds under § 102.29(1) is legislatively mandated and may be deviated from only with the consent of both parties.’ Id. at 303-04. The proceeds recovered on any third-party tort claim are distributed as follows:

After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employee or the employee's personal representative or other person entitled to bring action. Out of the balance remaining, the employer, insurance carrier or, if applicable, uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter, except that it shall not be reimbursed for any payments of increased compensation made or to be made under s. 102.18 (1) (bp), 102.22, 102.35 (3), 102.57 or 102.60. Any balance remaining shall be paid to the employee or the employee's personal representative or other person entitled to bring action. .. .If both the employee or the employee's personal representative or other person entitled to bring action, and the employer, compensation insurer or department, join in the pressing of said claim and are represented by counsel, the attorneys' fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between such attorneys as directed by the court or by the department.

§ 102.29(1). Thus, the reasonable costs of collection are first deducted from any recovery. These costs include both the employee's and the worker's compensation carrier's attorneys' fees and costs if both attorneys "join in the pressing" of the claim. Id.

¶ 21. Anderson argues that to join in the pressing of the claim requires the worker's compensation carrier to demonstrate that its attorney's activities substantially contributed to making the third party pay. He asserts that the worker's compensation carrier should not recover reasonable attorney fees for activities that merely duplicate the activities of the injured party's attorney, or merely document the amount of its lien interest, and are not effective or necessary in procuring a recovery from the third party.

¶ 22. In advancing this argument, Anderson recognizes that the court of appeals held to the contrary in Zentgraf v. The Hanover Insurance Co., 2002 WI App 13, ¶ 14, 250 Wis. 2d 281, 640 N.W.2d 171. Because we agree with and adopt that reasoning, we see no reason to depart from that precedent.

A

¶ 23. We begin with Wis. Stat. § 102.29(1). That section recognizes an employee's right to maintain a tort claim against a third party who caused the underlying worker's compensation injury, hut it gives worker's compensation carriers "the same right." Perhaps most importantly, § 102.29(1) explains that both the employee and the worker's compensation carrier "shall have an equal voice in the prosecution of said claim...."

¶ 24. If both the employee and the worker's compensation carrier "join in the pressing" of the third-party tort claim and "are represented by counsel, the attorneys' fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between such attorneys as directed by the court or by the department." Id.

B

¶ 25. This court first considered what it meant to join in the pressing of the claim in Diedrick v. Hartford Accident & Indemnity Co., 62 Wis. 2d 759, 216 N.W.2d 193 (1974). In Diedrick, this court affirmed that Wis. Stat. § 102.29(1) contemplates but one "reasonable cost of collection" if both the employee and the worker's compensation carrier "join in the pressing" of the third-party claim. Diedrick, 62 Wis. 2d at 766-67. Finding § 102.29(1) plain and unambiguous, this court stated, "[t]he statute specifically requires the court approving the settlement to determine the attorneys' fees to be allowed where both the injured party and the compensation carrier joined in bringing the claim to court, and then requires the trial court to divide the fees allowed 'between such attorneys.'" Id. at 763-64 (citations omitted).

¶ 26. In bringing a claim to court, the Diedrick court recognized that the services the worker's compensation carrier's attorney performed are recoverable even if not completed "at the request of or on behalf of the employee." Id. at 767. This court determined that the statute allows the worker's compensation carrier's attorneys to recover a "reasonable fee based on services performed for and on behalf of the carrier." Id. "[I]t is immaterial," this court concluded, "whether efforts of the carrier's counsel contributed to the employee's recovery." Id. at 766. Examples of those efforts that were recoverable included the carrier's counsel drafting required legal papers, handling the advance depositions, and participating in the negotiations for settlement. Id. at 767.

¶ 27. The court of appeals expanded on what it means to press the claim against the third party in Zentgraf, 250 Wis. 2d 281. Following a third-party settlement approval, American, the worker's compensation carrier, argued the circuit court erred by not awarding it its attorney fees as a cost of collection under Wis. Stat. § 102.29(1). Zentgraf, the employee, argued that none of American's activities constituted legal efforts "to prepare the case for trial or to reach a settlement." Id., ¶ 15. Zentgraf contended that absent active participation in the pressing of the principal third-party claim, which he claimed was contributing services toward the successful result, American was not entitled to attorney fees as part of the reasonable cost of collection. Id. The court of appeals disagreed.

¶ 28. The court of appeals turned to ordinary dictionary definitions of "press" to understand what it means to join in the pressing of the claim. Id., ¶ 18. The court observed that press meant "to follow through (a course of action)," "to seek to influence, as by insistent arguments; entreat insistently," and "to attempt to force to action; urge on." Id. (citations and quotations omitted). Under any of these definitions, the court concluded, American joined in the pressing of the claim against the third party. As examples of American's pressing activities, the court offered:

In addition to repeatedly notifying the circuit court of the amount of its lien claim and its intent to participate in the prosecution of the claim against Duame [the third party tortfeasor] and his insurer, counsel for American: (1) was in frequent contact with attorneys for the other parties; (2) responded to requests from both defense counsel and plaintiffs' counsel to produce documents; (3) requested, received, and reviewed medical records from multiple medical institutions; (4) spent time preparing for the final pretrial conference; (5) frequently reviewed the case file to determine the status of discovery and investigation; (6) prepared for and attended a mediation conference; (7) analyzed Wis. Stat. § 102.29 implications for settlement and repeatedly communicated with the Zentgrafs' attorney regarding distribution of the settlement proceeds; (8) prepared a motion to postpone the hearing on the Zentgrafs' motion to approve the settlement and distribution of its proceeds as outlined in their proposed order; (9) prepared a letter brief and affidavit with supporting documentation; and (10) prepared for and attended the motion hearing. Although the Zent-grafs emphasize that the action was settled in April 2000, substantial issues regarding distribution of the settlement funds remained until the circuit court signed the Zentgrafs' proposed order on January 11, 2001.

Id., ¶ 19. Ultimately, the court of appeals remanded the case for further proceedings to determine the attorney fees due. Id., ¶ 20.

¶ 29. We see no reason to supplant the interpretations given to Wis. Stat. § 102.29(1) in Diedrick and Zentgraf with Anderson's substantial contribution test. Both decisions are consistent with Wis. Stat. § 102.29(l)'s grant that both the injured employee and the worker's compensation carrier have "the same right" to maintain the third-party claim and "an equal voice in the prosecution of said claim." Both decisions also recognize that the attorneys represent different parties, which may have unaligned interests. Thus, any activities that the attorney takes to bring the claim to court on behalf of his or her client, as expanded in Zentgraf, constitute a cost of collection amenable to recovery under § 102.29(1).

¶ 30. To conclude that a worker's compensation carrier cannot recover attorney fees for work that "merely duplicate [s]" the employee's attorney's actions or "simply document the amount of the lien" ignores that this work is performed on behalf of the client, the worker's compensation carrier. As Zentgraf illustrated, there can be a laundry list of activities undertaken as part of normal advocacy in bringing a claim to court that has little to do with "substantially contributing to making the third-party pay." Therefore, we will not depart § 102.29(l)'s prior precedent.

IV

¶ 31. Anderson's second argument is that Accident Fund failed to establish the reasonableness of its claimed costs of collection. In particular, Anderson notes that Accident Fund did not file proof of the hours worked, the rate hilled, or an itemization of disbursements.

¶ 32. Accident Fund responds by criticizing Anderson for the same shortcomings. Although Anderson's fee was based on a one-third contingency fee agreement, Accident Fund notes that Anderson has provided no basis upon which to conclude that his fee and costs were reasonable. On this issue, we agree with both parties.

¶ 33. As mentioned above, Wis. Stat. § 102.29(1) contemplates a deduction for costs of collection, and that deduction must be reasonable. Diedrick, 62 Wis. 2d at 766-67. In this case, the circuit court awarded $17,730.12 as the reasonable cost of collection on a $25,000 settlement; $10,257.15 to Anderson's attorney ($8,333.33 one-third contingent fee and $1,923.82 in costs), and $7,472.97 to Accident Fund for attorney fees and costs.

¶ 34. While the award of attorney fees is a matter left to the circuit court's discretion and is entitled to deference, the circuit court in this case did not consider the reasonableness of the aggregate fees and costs, let alone the reasonableness of the individual fees in the first instance. Instead, the circuit court concluded that it was required to approve Accident Fund's attorney fees. This was an erroneous interpretation of the law, and thus an erroneous exercise of discretion. See Theis, 232 Wis. 2d 749, ¶ 8. Considering the lack of information the circuit court had to work from, our review of the record cannot salvage the circuit court's order.

¶ 35. On remand, the circuit court must first determine what constitutes the reasonable cost of collection. Although seemingly simple, this task is complicated here since Anderson's attorney is working on a contingency fee basis while Accident Fund is working on an hourly basis. To determine what the reasonable cost of collection is, the circuit court will have to manage alternate tests to gauge the reasonableness of the different attorney fees, while bearing in mind that the aggregate of reasonable attorneys' fees may not result in a reasonable cost of collection. We discuss each test in turn.

A

¶ 36. In Meyer, the court of appeals was confronted with whether the circuit court properly exercised its discretion by awarding an employee's attorney a one-third contingent fee (resulting in a $333,333.33 fee) as part of the reasonable cost of collection under Wis. Stat. § 102.29(1). Meyer, 233 Wis. 2d 493, ¶¶ 1, 9. For guidance, the court of appeals turned to Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 204, 496 N.W.2d 57 (1993), an eminent domain case involving awarding attorneys' fees. The court of appeals noted that in Village of Shorewood, this court determined that a contingency fee agreement was to be used only as a guide when calculating reasonable attorney fees; it is not controlling. Meyer, 233 Wis. 2d 493, ¶ 13. The court of appeals further observed that the Village of Shore-wood court held that the circuit court must consider all of the circumstances to determine whether a contingency fee figure is reasonable and looked to the factors in SCR 20:1.5(a) to help steer that determination. Meyer, 233 Wis. 2d 493, ¶ 13. Using that framework, the court of appeals determined that the circuit court properly exercised its discretion by awarding the employee's attorney a one-third contingency fee. Id., ¶ 23.

¶ 37. As in Meyer, the circuit court in this case must evaluate Anderson's one-third contingency fee in light of all the circumstances. The court must not simply enforce the contingency fee agreement. Supreme Court Rule 20:1.5(a) lists factors that help determine the reasonableness of an attorney's fee, which are:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Id. Although each factor need not be examined, the circuit court must consider "all the circumstances of the case to determine whether the contingency fee amount is a just and reasonable figure." Village of Shorewood, 174 Wis. 2d at 204.

¶ 38. We pause to note that we do not question the propriety of a contingency fee in a third-party tort claim. We recognize that contingency fees play a vital role in ensuring that certain claimants get access to the courts by providing attorneys with a sufficient incentive that outweighs the risks of litigating uncertain claims. We further recognize that contingent fees also counterbalance prior gambles the attorney took that returned little or nothing in terms of compensation. Nevertheless, assessing the reasonableness of Anderson's contingency fee is necessary here as it is the first step in determining the reasonable costs of collection under Wis. Stat. § 102.29(1). See infra Part IVC.

B

¶ 39. Scrutinizing Accident Fund's attorney fees requires a different analysis because Accident Fund's attorney is working on an hourly basis. To determine the reasonableness of Accident Fund's attorney's fees, all parties concede that the circuit court must follow this court's recent decision in Kolupar, 275 Wis. 2d 1. In Kolupar, this court adopted the lodestar approach for determining reasonable attorney fees in fee-shifting statutes. Under this analysis, the circuit court must first multiply the reasonable hours expended by a reasonable rate. Id., ¶ 29. The circuit court may then make adjustments using the SCR 20:1.5(a) factors. Id., ¶¶ 29-30.

C

¶ 40. After determining the reasonable value for each party's fees and costs, the circuit court's inquiry does not end. Wisconsin Stat. § 102.29(1) requires deducting the reasonable cost of collection from third-party claim proceeds. The sum of the attorneys' reasonable fees and costs may, but need not, equal a reasonable cost of collection. The circuit court must evaluate the total cost of collection and determine whether that sum is reasonable, in light of, among other things, the recovery. SCR 20:1.5(a)(4).

¶ 41. As in evaluating the reasonableness of the contingency fee and hourly fee, the circuit court has wide discretion here. Examples of factors to consider as highlighted in this case include the quality and quantity of services provided (to weed out costs and fees that are merely duplicative, needless, or unreasonable with regard to pressing the claim), the amount recovered from the third party, and the posture of the case (to take into account whether additional litigation was necessitated by the lack of notice and the need for appellate litigation. See Pagel v. Kees, 23 Wis. 2d 462, 472, 127 N.W.2d 816 (1964)).

¶ 42. And finally, after determining the reasonable costs of collection, the court must direct, unless otherwise agreed, how the attorneys' fees are to be divided between the attorneys.

V

¶ 43. To foreclose an issue that will arise on remand, we address a question that emerged during oral argument. On November 16, 2003, Anderson arbitrated his underinsured motorist (UIM) claim and he received $85,000, with a $25,000 reduction for the prior settlement. Accident Fund contends that the circuit court's determination of what constitutes reasonable costs of collection should take into account the UIM claim proceeds, as it suggests that much (if not all) of the groundwork for the UIM claim was laid during the third-party tort claim.

¶ 44. We cannot reconcile Accident Fund's contention with Wis. Stat. § 102.29(1). That section specifically deals with third-party liability, specifically "an action in tort against any other party for such injury or death." Id. The worker's compensation carrier has "the same right to make claim or maintain an action in tort against any other party for such injury or death." Id. Out of the proceeds of "said claim," the worker's compensation carrier is entitled to the reasonable costs of collection. A UIM claim, however, is not a third-party tort claim. As is an uninsured motorist claim, a UIM claim is a first-party contract claim. See Berna-Mork v. Jones, 174 Wis. 2d 645, 651, 498 N.W.2d 221 (1993) ("[UJnder sec. 102.29(1), Stats., an employer or compensation insurer has no right to subrogation against uninsured motorist benefits available to the employee because an action for uninsured motorist benefits is based on contract not tort."); Danner v. Auto-Owners Ins., 2001 WI 90, ¶ 51, 245 Wis. 2d 49, 629 N.W.2d 159 ("Underinsured motorist coverage provides first party coverage that affords compensation for injured persons whenever a tortfeasor is inadequately insured." (citation and quotation omitted)). Thus, we see no basis upon which to conclude that the worker's compensation carrier obtains the benefit of having its fees and costs artificially enlarged by inflating the recovery the injured employee ultimately obtains.

VI

¶ 45. In sum, we conclude that Wis. Stat. § 102.29(1) does not require a worker's compensation attorney to demonstrate that his or her activities substantially contributed to obtaining recovery from the third party, or that the activities were taken on behalf of the employee, in order to join in the pressing of a claim. However, the cost of collection must be reasonable. Because the circuit court did not consider whether the total costs of collection in this case were reasonable in light of the amount recovered, and because the court lacked sufficient information upon which to base its determination regarding attorneys' fees, we reverse the court of appeals' decision and remand the matter to the circuit court for a determination of what the reasonable costs of collection are and how those costs are to be apportioned between the attorneys.

By the Court. — Reversed and cause remanded for further proceedings consistent with this opinion.

ANN WALSH BRADLEY, J.

¶ 46. {concurring). I agree with the majority that upon remand the circuit court must determine the reasonable cost of collection. I also agree with the majority that the sum of reasonable attorney fees and costs does not necessarily equal the "reasonable costs of collection." I write separately, however, to provide further context to the majority's contingent fee discussion.

¶ 47. The majority aptly describes the statutory formula under Wis. Stat. § 102.29 for distribution of proceeds from a third-party recovery. Citing Diedrick v. Hartford Accident & Indemnity Co., 62 Wis. 2d 759, 766-67, 216 N.W.2d 193 (1974), it notes that the statute contemplates a deduction for costs of collection, and that the deducted amount must be reasonable. Majority op., ¶ 33. The majority also recognizes that the task to determine the reasonable cost of collection is made more complicated here because two firms are seeking attorney fees and because a determination of the reasonable cost of collection encompasses both an hourly fee and a contingent fee. Id., ¶ 35.

¶ 48. Last term in Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 275 Wis. 2d 1, 683 N.W.2d 58, we addressed the proper analytical framework for determining reasonableness of a fee when it is based on an hourly rate. We adopted the lodestar method. Id., ¶ 30. This court acknowledged that the underpinnings of the analysis include the assessment of the reasonable number of hours worked multiplied by a reasonable hourly rate. Id., ¶ 29. After determining that amount, we observed that the application of the factors set forth in SCR 20:1.5 may alter the result of the rate-X-hours equation. See id., ¶ 33-35.

¶ 49. The majority here fails to discuss the underpinnings of the contingent fee agreement and merely directs that the non- exhaustive list of factors set forth in SCR 20:1.5 are to be applied. Majority op., ¶ 37. The problem with the majority's approach is twofold: (1) a discussion of the underpinnings of the contingent fee is necessary to provide the context for the reasonableness determination; and (2) most of the factors set forth in SCR 20:1.5 are not relevant to a contingent fee reasonableness determination.

¶ 50. The underpinnings of the contingent fee are distinct from those of the hourly fee. The normal hourly fee purchases the services of an attorney at a predetermined rate. Under a contingent fee, a client purchases more than just services. The contingent fee also provides a form of financing. When using an hourly rate, a client typically pays some amount at the beginning or is billed as the work progresses. By its nature, the contingent fee is normally not collected until the case is finished. As a result, the contingent fee attorney ends up financing the case.

¶ 51. The contingent fee may also provide a form of insurance. That is, if no money is collected, then often the client is liable for nothing, not even the expenses. The contingent fee agreement in this case serves as an example of this type of insurance. The first sentence of the agreement states: "If no amount is collected on your case, the attorney will be entitled to no fee for services and you will not be required to pay out-of-pocket expenses incurred by the attorney." (Underlined in original.)

¶ 52. The contingent fee plays a vital role in our civil litigation system. It serves a gatekeeping function. Cases with little merit will not be brought because they are not worth taking the risk. Attorneys will screen out cases with a low probability of recovery. It also serves, however, as an important tool for access to justice. It opens the courthouse doors to people who could not otherwise afford to bring their cases.

¶ 53. With the differences in background and function, there comes also a difference in the focus of the reasonableness analysis. The focus of the reasonableness inquiry for the contingent fee is not so much tied to the individual hours or efforts spent on a particular case, but rather it encompasses a broader focus. The basic idea behind use of the contingent fee is that in some individual tort cases the attorney may get what seems like a windfall, but in other cases the attorney can take the case through a long trial and appeal and get nothing. Sometimes the risk pays off, and sometimes it does not. A broader focus is important when assessing the reasonableness of the contingent fee.

¶ 54. In a study of the financial risks attendant to the use of the contingent fee agreement, one commentator explained the broader focus as follows: "The profits from contingency fee work come not from the individual case but from the portfolio of cases that a lawyer handles. Some of the 'investments' in that portfolio do poorly (some are disasters), many do okay and a few do extremely well. As with any type of investment strategy, one must look at the returns from the portfolio as a whole rather than focus on single investments (or cases)." Herbert M. Kritzer, Investing in Cases: Can You Profit From Contingency Fee Work1?, 70 Wis. Lawyer 10, 45 (August 1997).

¶ 55. Although the majority recognizes that there are differences between a contingent fee and an hourly fee, it fails to discuss the differences in the reasonableness analysis. It instructs the circuit court to evaluate Anderson's fee by applying the factors set forth in SCR 20:1.5 and cites to Meyer v. Michigan Mutual Insurance Co., 2000 WI App 53, 233 Wis. 2d 493, 609 N.W.2d 167.

¶ 56. The majority fails to observe that the court of appeals in the Meyer case struggled mightily in trying to fit a reasonableness of contingent fee analysis (a square peg) into SCR 20:1.5(a) (a round hole). To accomplish this task, the Meyer court stated that courts did not have to consider all the factors, and determined that the trial court, in the exercise of its discretion, had considered three factors: (1) the time and labor required; (2) the amount of money involved; and (3) the attendant risks. Id., ¶ 16.

¶ 57. The problem with the Meyer court discussion underscores the dilemma a court faces when relying on SCR 20:1.5 to assess the reasonableness of a contingent fee. The factors readily apply to an hourly fee determination, but provide little guidance for the determination of the reasonableness of the contingent fee.

¶ 58. To begin, the "risk" factor which played a prominent role in the Meyer court's reasonableness determination does not even appear in the factors listed in SCR 20:1.5. Like both the trial court and court of appeals in Meyer, I believe that a consideration of "risk" does and should play a prominent role in the reasonableness determination of a contingent fee.

¶ 59. Next, the Meyer court recognized, as should this majority, that the "time and labor" factor does not always readily fit the contingent fee analysis. See id., ¶ 18. In an effort to make it fit, it had to redefine the "time and labor" factor.

¶ 60. The Meyer court indicated that what it meant by the "time and labor" factor of SCR 20:1.5(a) did not focus on the "substantial hours and efforts expended by Meyer's attorneys" in this particular case, but in their "hundreds and hundreds of hours in litigation such as this and in worker's compensation." Id. Thus, the court redefined the "time and labor" factor to mean the time and effort expended to acquire expertise in this area of practice.

¶ 61. Finally, the Meyer court emphasized that the trial court's determination of reasonableness of the contingent fee is not based on hours worked or time sheets, but on whether the terms of the contingent fee were reasonable. It then quoted with approval the basis of the trial court's reasonableness determination:

[ T]he [§] 102.29 phraseology of reasonable costs of collection is not meant nor is it to be interpreted as that. .. attorneyfs] must prove on an hourly basis or a work time sheet that they had put in that time and that effort to equal that amount that had been gained under the contingent fee contract. Reasonable costs of collection for attorney fees includes whether the arrangement that had been made between the client and the lawyer was reasonable.
And I can take judicial notice that it is reasonable to have a contingent fee agreement....

Id., ¶ 21.

¶ 62. Given the underpinnings of the contingent fee agreement, I agree with the Meyer court that the reasonable costs of collection inquiry includes the threshold inquiry of whether the contingent fee arrangement between the attorney and client was reasonable. Like the court in Meyer, I too conclude that it is reasonable to have a contingent fee here.

¶ 63. Ultimately, I do not think that many of the factors of SCR 20:1.5(a) even apply to a reasonableness of contingent fee analysis. The factors in SCR 20:1.5(a) are as follows:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

¶ 64. Although the listed factors seem relevant to a determination of the reasonableness of a fee based on an hourly rate, many seem irrelevant to the reasonableness inquiry for a contingent fee. Except as redefined by the Meyer court, the reasonableness of a contingent fee does not normally depend on the time and labor required in a case, as set forth above in (1).

¶ 65. Likewise, the (2) inquiry, which addresses whether the particular employment will preclude other employment by the lawyer, seems to have little or nothing to do with the reasonableness of a contingent fee. The same can be said for the factors set forth in (5), (6), and probably (7).

¶ 66. Upon remand, I think that SCR 20:1.5 (a) will be of limited assistance to the circuit court in its reasonableness determination of the contingent fee. Accordingly, although I join the opinion of the majority, for the forgoing reasons I respectfully concur.

       Wisconsin Stat. § 102.29(1) reads in full:
      102.29 Third party liability. (1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employee shall not affect the right of the employee, the employee's personal representative, or other person entitled to bring action, to mate claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the mating of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employee or the employee's dependents to recover compensation. The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right to mate claim or maintain an action in tort against any other party for such injury or death. If the department pays or is obligated to pay a claim under s. 102.81 (1), the department shall also have the right to maintain an action in tort against any other party for the employee's injury or death. However, each shall give to the other reasonable notice and opportunity to join in the making of such claim or the instituting of an action and to be represented by counsel. If a party entitled to notice cannot be found, the department shall become the agent of such party for the giving of a notice as required in this subsection and the notice, when given to the department, shall include an affidavit setting forth the facts, including the steps taken to locate such party. Each shall have an equal voice in the prosecution of said claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department. If notice is given as provided in this subsection, the liability of the tort-feasor shall he determined as to all parties having a right to make claim, and irrespective of whether or not all parties join in prosecuting such claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employee or the employee's personal representative or other person entitled to bring action. Out of the balance remaining, the employer, insurance carrier or, if applicable, uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter, except that it shall not be reimbursed for any payments of increased compensation made or to be made under s. 102.18 (1) (bp), 102.22, 102.35 (3), 102.57 or 102.60. Any balance remaining shall be paid to the employee or the employee's personal representative or other person entitled to bring action. If both the employee or the employee's personal representative or other person entitled to bring action, and the employer, compensation insurer or depart ment, join in the pressing of said claim and are represented by counsel, the attorneys' fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between such attorneys as directed by the court or by the department. A settlement of any 3rd party claim shall be void unless said settlement and the distribution of the proceeds thereof is approved by the court before whom the action is pending and if no action is pending, then by a court of record or by the department.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       The court of appeals also concluded that Anderson's appeal was not frivolous. That issue is not before us.

       Anderson also advances a third argument, that it is unreasonable for Accident Fund to spend over $7,400 to collect an $8,700 worker's compensation lien based on a claim against a tortfeasor with a $25,000 policy. We do not reach this issue because we conclude that the circuit court erroneously exercised its discretion by concluding that it was required to approve Accident Fund's represented attorney fees without assessing their reasonableness or the reasonableness of the total costs of collection.

       Hereafter, and unless otherwise indicated, "Accident Fund" includes Accident Fund's attorney.

        See also Campion v. Montgomery Elevator Co., 172 Wis. 2d 405, 410-13, 493 N.W.2d 244 (Ct. App. 1992) (concluding Wis. Stat. § 102.29(1) provides worker's compensation carrier with a direct cause of action against third-party tortfeasor for payments the carrier made).

       The fee ágreement also contained escalating percentages of recovery depending on whether appeals were taken. Anderson's attorney has represented to both the court of appeals and to this court that he will not charge his client any additional fees for pursuing appeals. Accordingly, we limit our discussion to the one-third recovery.

       The affidavit also contained assertions and exhibits relating to disputed medical expenses, an issue that apparently has since been resolved.

       That is not to say that all activities the worker's compensation carrier's or the employee's attorney undertakes are recoverable. Wisconsin Stat. § 102.29(1) allows the recovery of only the "reasonable costs of collection." Through the exercise of its discretion, the circuit court may conclude that it would be unreasonable to award duplicative costs and therefore divide the attorneys' fees as it deems appropriate as a "reasonable cost of collection".

       Although we caution that the aggregate of reasonable attorney fees and costs does not necessarily translate into the reasonable costs of collection, we acknowledge that through the circuit court's proper exercise of discretion it might. Thus, it is appropriate for the court to first determine the reasonable value of each party's attorney's fees.

       The trial court should consider "the amount involved and the results obtained".

       For a more in-depth discussion of this topic, see Herbert M. Kritzer, The Wages of Risk: The Returns of Contingency Fee Legal Practice, 47 DePaul L. Rev. 267 (Winter 1998).

       For further discussion of the eight factors set forth in the ABA Model Code Rule 1.5, which are identical to the eight factors set forth in SCR 20:1.5., see Ankur Parekh and Jay R. Pelkofer, Lawyers, Ethics, and Fees: Getting Paid Under Model Rule 1.5, 16 Geo. J. Legal Ethics 767 (Summer 2003).


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J.

license: Public Domain

text:
    Julie Ann Walberg, as Special Administrator for the Estate of Lucille Genevieve Yox, Deceased, Plaintiff-Appellant, v. St. Francis Home, Inc. and Catholic Charities Bureau, Inc., Defendants-Respondents-Petitioners.
    Supreme Court

      No. 2003AP2164.

      Oral argument March 1, 2005.

      Decided June 2, 2005.

    2005 WI 64
    (Also reported in 697 N.W.2d 36.)

      For the defendants-respondents-petitioners there were briefs by Kenneth A. Knudson, Kristin M. Watson and Knudson, Gee & Torvinen, S.C., Superior, and oral argument by Kenneth A. Knudson.

    For the plaintiff-appellant there was a brief by Keith J. Peterson, Superior and David L. Weidt, Duluth, MN, and oral argument by David L. Weidt.

    An amicus curiae brief was filed by Robert L. Jaskulski and Habush, Habush & Rottier, Milwaukee; William C. Gleisner, III, and Law Offices of William Gleisner, Milwaukee; and Jason T. Studinski and Hammer & Studinski, Portage, on behalf of the Wisconsin Academy of Trial Lawyers, and there was oral argument by William C. Gleisner, III.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioners, St. Francis Home, Inc. and Catholic Charities Bureau, Inc., seek review of a decision of the court of appeals reversing a circuit court order that had dismissed Julie Ann Walberg's negligence and breach of contract claims against them. The petitioners contend that the claims were time-barred under Wis. Stat. § 893.22. We determine, however, that Wis. Stat. § 893.22 is a saving statute that is not applicable to the facts of this case. Because we conclude that Wis. Stat. § 893.16 is the relevant statute for calculating the limitations at issue and that the claims were timely commenced, we affirm the decision of the court of appeals.

HH

¶ 2. The essential facts are brief and undisputed. Between March 29, 1994, and December 3, 1996, the decedent, Lucille Genevieve Yox, was a resident of St. Francis Home in Douglas County, Wisconsin. At all material times and until her death on August 15, 2000, Yox suffered from Alzheimer's disease. The parties agree that Alzheimer's disease constituted a "mental illness" for the purposes of Wis. Stat. § 893.16.

¶ 3. On August 12, 2002, Julie Ann Walberg was appointed special administrator for Yox's estate. That same day, Walberg commenced an action for negligence and breach of contract against St. Francis Home, Inc. and Catholic Charities Bureau, Inc. (hereinafter collectively referred to as "St. Francis"). The claims concerned allegations related to Yox's care at St. Francis Home. The parties agree that such claims would have accrued on December 3, 1996.

¶ 4. Among other defenses, St. Francis asserted that the action was time-barred due to Wis. Stat. § 893.22. It then filed a corresponding motion to dismiss. The circuit court granted the motion, concluding that the relevant statute of limitations was not two years from Yox's death under Wis. Stat. § 893.16, but rather one year from Yox's death under Wis. Stat. § 893.22. Walberg appealed.

¶ 5. The court of appeals reversed the order of the circuit court. Relying on Curran v. Witter, 68 Wis. 16, 31 N.W. 705 (1887), it determined that Wis. Stat. § 893.22 applied only to cases where a person dies with an existing claim that has less than one year remaining on the period of limitation. Walberg v. St. Francis Home, Inc., 2004 WI App 120, ¶ 7, 274 Wis. 2d 414, 683 N.W.2d 518. Accordingly, it concluded that Wis. Stat. § 893.16 was the applicable statute for calculating the period of limitation and that Walberg's claims were timely commenced. St. Francis petitioned this court for review.

II

¶ 6. This case arises in the context of a motion to dismiss. When reviewing such a matter, we accept alleged facts and reasonable inferences as true, but draw all legal conclusions independently. Tri City Nat'l Bank v. Federal Ins. Co., 2004 WI App 12, ¶ 6, 268 Wis. 2d 785, 674 N.W.2d 617 (citing Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995)).

¶ 7. The sole issue for our review is how to compute the statute of limitations for a disabled person's claim when that person dies. Our inquiry focuses on two statutes: Wis. Stat. §§ 893.22 and 893.16. Interpretation of statutes presents questions of law subject to independent appellate review. Vill. of Lannon v. Wood-Land, Contractors, Inc., 2003 WI 150, ¶ 12, 267 Wis. 2d 158, 672 N.W.2d 275 (citing Meyer v. School Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999)).

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¶ 8. We begin our discussion by examining Wis. Stat. § 893.22. It provides in relevant part:

Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person's representatives after the expiration of .that time and within one year from the person's death.

¶ 9. St. Francis maintains that Wis. Stat. § 893.22 is a statute of limitations that governs actions brought by an estate after the injured party's death. Applying this interpretation to the present case, it contends that the statute automatically shortened the period of limitation for Yox's existing claims to one year, causing Walberg’s claims to be time-barred. Because the death occurred on August 15, 2000, St. Francis asserts that the action must have been commenced within one year of that date.

¶ 10. Walberg, meanwhile, advances that Wis. Stat. § 893.22 extends, rather than restricts, the time period for commencing an action of a deceased claimant. She notes that the statute grants the claimant's representatives the power to bring an action after the time limit for commencement of the action. Furthermore, Walberg argues that it is unnecessary to grant the power to commence an action during the time limited for commencement of the action, for that power is already granted by the underlying statute of limitations.

¶ 11. In Curran v. Witter, 68 Wis. 16, this court examined Section 4234 of the Revised Statutes of Wisconsin (1878), the predecessor of Wis. Stat. § 893.22. The matter arose in the context of a banking dispute. James Curran had deposited $540 with Witter's Bank on October 6,1869. Curran died intestate in 1872, and an administrator was named for his estate in 1885. The administrator subsequently brought suit against the bank, seeking to recover the $540. The bank maintained that Curran had already withdrawn the $540. Additionally, it asserted a statute of limitations defense.

¶ 12. Ultimately, the Curran court determined the statute of limitations defense to be dispositive, concluding that the claim was barred on and after October 7,1875. 68 Wis. at 22. In doing so, it examined Section 4234 and noted, "[i]t is obvious that this provision only reaches a case where the person entitled to bring the action dies during the last year of the term of limitation." Id. Because Curran died more than one year before the statute ran against the claim, the court held that Section 4234 had no application to the action. Id.

¶ 13. This court reaffirmed the Curran court's interpretation of Section 4234 in Palmer v. O'Rourke, 130 Wis. 507, 110 N.W. 389 (1907), a case involving an alleged conversion. The Palmer court drew upon Cur-ran in rejecting the application of Section 4234 to its case. Palmer, 130 Wis. at 511. It stated in relevant part:

The death of the person to whom the right of action accrues does not extend such time unless such death occurs during the last of the six years. In such circumstances sec. 4234, Stats. 1898, provides that "if a person entitled to bring an action die before the expiration of the time limited for the commencement thereof and the cause of action survive an action may be commenced by his representatives after the expiration of that time and within one year from his death." Curran v. Witter, 68 Wis. 16, 31 N.W. 705, limited such section to cases where the death of a person occurs during the last year of his right to commence the action. So it will be seen it does not apply here.

Id.

¶ 14. Additional support for the Curran court interpretation is found in the annotated text of Wis. Stat. § 4234 (1889). That text contains a specific reference to Massachusetts Pub. Stats. Ch. 197, Sec. 12, and the case of Converse v. Johnson, 14 N.E. 925 (Mass. 1888). The Massachusetts statute is reproduced in the note and is very similar to § 4234, except that it permits a decedent's representatives two years after the granting of testamentary letters to commence an action and also contains a 30-day provision not found in § 4234. The Converse case describes the purpose of the Massachusetts statute as follows:

Pub.St. c. 197, § 12 cannot well be construed to mean that in every case the executor or administrator of a deceased' person who was entitled to bring an action must bring the action within two years after the grant of letters testamentary or of administration. The section was not intended to further limit the bringing of actions, but to extend the time within which they could be brought, when the person entitled to bring them died before the expiration of the time ... .It was not intended by this section that the debtor should have a defense to which he was not otherwise entitled ....

14 N.E. at 927.

¶ 15. Although St. Francis questions the soundness of the Curran court's interpretation, we do not. Examining the language of Wis. Stat. § 893.22, three preconditions are specified: (1) a person dies; (2) before the expiration of the time limited for the commencement of an action; and (3) the cause of action survives the person's death. If these are met, then the statute allows for commencement of an action by the person's representatives only when two further criteria are satisfied: the action is commenced within one year of the person's death and whatever time remaining under the applicable statute of limitations passes.

¶ 16. As the court of appeals cogently explained in its decision below, Curran's interpretation lies in the interplay of these last two criteria. The "obvious" con-elusion is that the statute applies only to those actions where the time remaining under the statute of limitations is less than one year:

[I]f the action must be commenced within one year and the remaining time under the action's statute of limitations must have passed, then it necessarily follows that the remaining time under the action's statute of limitations must be less than one year. Curran's holding does not add a gloss to what is now § 893.22, but only clarifies the peculiar wording of the statute and, once clarified, the holding is indeed obvious.

Walberg, 274 Wis. 2d 414, ¶ 7 n. 4.

¶ 17. A hypothetical example further illustrates why Wis. Stat. § 893.22 cannot apply to claims with more than one year remaining on their statutes of limitations. Suppose, for instance, a claimholder died with two years remaining on the statute of limitations. If Wis. Stat. § 893.22 applied, it would allow a claim to be asserted after the expiration of the remaining two years on the statute of limitations and within one year from the person's death. Such a reading, of course, renders the statute internally inconsistent.

¶ 18. Accordingly, we are satisfied that Wis. Stat. § 893.22 applies only when a person dies with an existing claim that has less than one year remaining on the period of limitation. We therefore determine that Wis. Stat. § 893.22 acts as a saving statute, not a statute of limitations. It provides an opportunity for the representatives of any deceased person to evaluate the potential claims and complete the procedures necessary to commence an action within a period of one year following the death of the potential claimant.

¶ 19. In the present case, Wis. Stat. § 893.22 does not apply because Yox's claims could not have had less than one year remaining on their periods of limitation. We reach this conclusion by examining the other statute in dispute, Wis. Stat. § 893.16. It provides in relevant part:

Person under disability. (1) If a person entitled to bring an action is, at the time the cause of action accrues ... mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period prescribed in this chapter may not be extended for more than 5 years.
(2) Subsection (1) does not shorten a period of limitation otherwise prescribed.

¶ 20. A review of the language of Wis. Stat. § 893.16 makes evident that the statute operates differently based upon whether the person's mental disability does or does not cease. If a person's mental disability ceases, the action must be commenced within two years. Wis. Stat. § 893.16(1). However, if a person's mental disability does not cease, the period is extended for up to five years. Id. In either event, the underlying period of limitation is not shortened. Wis. Stat. § 893.16(2).

¶ 21. Here, the parties dispute whether Yox's death caused her disability to cease for purposes of Wis. Stat. § 893.16. We are persuaded that death constitutes a cessation of disability for two reasons. First, to suggest that disability somehow survives a person's death would belie common sense.

¶ 22. Second, precedent from other jurisdictions supports the conclusion that death terminates a legal disability. In re Estate of Hoenig, 298 N.W. 887 (Iowa 1941) (disability on account of minority terminated by minor's death); Fletcher v. Holcomb, 45 P.2d 1053 (Kan. 1935) (incompetent's disability removed by his death); Univ. of New Mexico v. Armijo, 704 P.2d 428, 430 (N.M. 1985) (citing Roberson v. Teel, 513 P.2d 977 (Ariz. App. 1973) (tolling of statute of limitations ends upon death of incompetent)); Martin v. Goodman, 258 P. 871 (Okla. 1927) (disability of minor to sue terminates at death of minor)). See also Barnes v. County of Onondaga, 481 N.Y.S.2d 539, 545 (1984), aff'd, 481 N.E.2d 245 (1985) ("toll of infancy would not benefit plaintiff since the infancy disability was removed by [infant's] death on the date of the accident").

¶ 23. We therefore determine that Yox's disability ceased on August 15, 2000, the date of her death. As indicated above, when a person's mental disability ceases, the action must be commenced within two years. Wis. Stat. § 893.16(1). However, this rule is not without its qualifications. To begin, the underlying period of limitation still cannot be extended more than five years. Wis. Stat. § 893.16(1). Moreover, the underlying period of limitation cannot be shortened. Wis. Stat. § 893.16(2).

¶ 24. In this case, Yox's claims were for negligence and breach of contract. The parties agree that both causes of action accrued on December 3, 1996. Under Wis. Stat. § 893.54, she had three years to bring her negligence action. Pursuant to Wis. Stat. 893.43, she had six years to bring her contract action. Had Yox not died, her underlying periods of limitation would have extended for up to five years pursuant to Wis. Stat. § 893.16(1). She therefore would have had until December 3, 2004, to bring the negligence action and until December 3, 2007, to bring the contract action. Under either calculation Wis. Stat. § 893.22 cannot apply, for the claims were not in the final year of their limitation period as of August 15, 2000, the date of Yox's death.

¶ 25. Because death ceased the disability on August 15, 2000, pursuant to § 893.16(1), Walberg had until August 15, 2002, to commence the negligence action on behalf of Yox. However, as to the contract cause of action, she was not required to commence the action by August 15, 2002. This is because § 893.16(2) provides that the underlying period of limitation cannot be shortened. Because the cause of action accrued on December 3, 1996, the underlying six-year period of limitation extended until December 2002. Thus, because Walberg brought suit August 12, 2002, we conclude that both claims were timely commenced.

¶ 26. In sum, we determine that Wis. Stat. § 893.22 is a saving statute that is not applicable to the facts of this case. Because we conclude that Wis. Stat. § 893.16 is the relevant statute for calculating the limitations at issue and that the claims were timely commenced, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

        Walberg v. St. Francis Home, Inc., 2004 WI App 120, 274 Wis. 2d 414, 683 N.W.2d 518 (reversing an order of the circuit court for Douglas County, George L. Glonek, Judge).

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

       We also agree with this conclusion. See Storm v. Legion Ins. Co., 2003 WI 120, ¶ 46, 265 Wis. 2d 169, 665 N.W.2d 353 ("[A] 'mental illness' [under § 893.16(1)] is a mental condition that renders a person functionally unable to understand legal rights and appreciate the need to assert them.").

       In addition, Walberg notes that other states have similar statutes modifying the deadlines for filing an action in the event of the death of a party. See, e.g., 735 Ill. Comp. Stat. 5/13-209 (2004); Iowa Code § 614.9 (2004); Mich. Comp. Laws Ann. § 600.5852 (2004); Minn. Stat. § 541.16 (2005). According to Walberg, these statutes serve the same function of extending, not restricting, the time for the representatives of a decedent to bring an action should a claimant die within a short time before the expiration of the claim.

       The text of Section 4234 is virtually identical to Wis. Stat. § 893.22. Section 4234 provides in relevant part:
      If a person to bring an action, die[s] before the expiration of the time limited for the commencement thereof, and the cause of action survive[s], an action may be commenced by his representatives after the expiration of that time, and within one year from his death.
      Wis. Rev. Stat. § 4234 (1878).

       Interestingly, it is St. Francis's contention that Yox's disability did not cease when she died. This position, of course, would extend the time in which Walberg had to commence the action under Wis. Stat. § 893.16 up to five years. Apparently, St. Francis advanced this argument in the hope that we would accept its position that Wis. Stat. § 893.16 tolls only the statute of limitations for living persons with disabilities, while Wis. Stat. § 893.22 applies to the deceased. We, of course, do not. As noted above, Wis. Stat. § 893.22 is inapplicable to the case at hand.


author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Lonnie C. Davis, Defendant-Appellant.
    Court of Appeals

      No. 04-1163-CR.

      Submitted on briefs February 2, 2005.

      Decided March 8, 2005.

    2005 WI App 98
    (Also reported in 698 N.W.2d 823.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Pamela Moorshead, Glendale.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general by William C. Wolford, assistant attorney general.
    Before Wedemeyer, RJ., Fine and Kessler, JJ.
   WEDEMEYER, PJ.

¶ 1. Lonnie C. Davis appeals from a judgment entered after a bench trial wherein he was found guilty of four counts of second-degree sexual assault, use of force, contrary to Wis. Stat. § 940.225(2)(a) (1993-94). He also appeals from an order denying his postconviction motion seeking resen-tencing. Davis claims: (1) the trial court erroneously exercised its sentencing discretion by failing to consider the fact that he was fourteen years old at the time of the offenses; (2) the sentence imposed constituted cruel and unusual punishment in violation of the Eighth Amendment;. (3) the trial court failed to adequately explain why it imposed the maximum possible sentence and why it ordered each sentence to run consecutively; and (4) the trial court erred in finding that the complaint filed before the statute of limitations expired, which identified Davis only by a DNA profile, was sufficient. Because the trial court properly exercised its sentencing discretion and because the complaint was sufficient, we affirm.

BACKGROUND

¶ 2. On September 10, 1994, at approximately 9:10 p.m., the victim, Kylesia R., was walking home from her job at Taco Bell. As she was walking near the area of 2100 North 20th Street in the City of Milwaukee, an unknown male approached her and demanded her purse. Kylesia responded that she did not have any money. The perpetrator then told her to raise her shirt, lift her bra, and shake it to make sure she was not hiding any money in her bra. Kylesia complied with the request. Subsequently, the perpetrator reached to the back of his waistband as if he was going to pull out a gun. Kylesia believed he had a gun. He told her that if - she ran or screamed for help, he would kill her.

¶ 3. Davis then grabbed Kylesia's arm and led her to a secluded park. He told her to "strip." She removed her pants and underwear and Davis pushed her to the ground. He then inserted his penis into her vagina from behind her while she was on her knees. He pushed her head into the ground and her mouth became full of grass. This assault lasted about five minutes. Davis then walked around to face Kylesia and told her to "Suck my dick." He then placed his penis into her mouth. This assault lasted about three minutes. Then Davis attempted penis-to-anus intercourse, but could not penetrate the anus. He then inserted his finger into her anus and opened her purse. He found a bottle of lotion, and put some of the lotion on his penis. He then completed the act of penis-to-anus intercourse. Kylesia began to cry and he told her to shut-up.

¶ 4. Throughout all of the assaults, he repeatedly asked Kylesia if it "felt good" and if she liked it. He also continued to threaten her. After the penis-to-anus assault, he completed another act of penis-to-vagina intercourse for approximately five minutes. He then removed his penis from her vagina and ejaculated on her back. After that, he got up, grabbed her bag of food from Taco Bell and left. Kylesia put her underwear and pants back on, went home, and immediately called the police to report the assaults.

¶ 5. A nurse examined Kylesia and secured as evidence the underwear she was wearing at the time of the assaults. Semen was obtained from the underwear and a DNA analysis was performed, using the Restriction Fragment Length Polymorphism (RFLP) technique. The DNA profile from the analysis was run through the convicted offender index of the Wisconsin DNA databank, but no match to the profile was found.

¶ 6. In 1997, Davis was convicted for sexually assaulting a different victim. He was sentenced to 105 years in prison and was required to provide a DNA sample. On August 30, 2000, shortly before the statute of limitations was due to expire in Kylesia's case, the State filed a criminal complaint and obtained an arrest warrant identifying the perpetrator of Kylesia's assaults as "John Doe" with the particular DNA profile identified from the semen in Kylesia's underwear. John Doe was charged with one count of forcible kidnapping and six counts of second-degree sexual assault.

¶ 7. In 1998 and 1999, the State crime lab began transitioning from the RFLP-DNA technique to a new DNA technology known as Polymerase Chain Reaction (PCR). Because RFLP profiles and PCR profiles are not comparable, the State began to re-analyze all of the evidentiary samples in its databank. When the DNA profile in this case was re-analyzed and the new PCR-DNA profile was compared to those in the Wisconsin databank, it was determined that a match was found. The PCR-DNA profile in this case matched that of convicted sex-offender Lonnie Davis.

¶ 8. On April 24, 2002, pursuant to a search warrant, an oral swab was taken from Davis and DNA testing was conducted on that swab. A comparison between the DNA from the swab and the DNA from the semen in Kylesia's underwear was conducted. The conclusion was that the DNA from both matched and the only reasonable scientific explanation was that Davis was the source of the semen in Kylesia's underwear.

¶ 9. An amended complaint was filed substituting Davis for John Doe and the case proceeded to trial. Davis waived his right to a jury trial in exchange for the dismissal of the kidnapping charge and two counts of sexual assault. The case was tried to the court. Davis stipulated to the facts presented by the State and did not present any defense. He was found guilty by the court. At sentencing, Davis maintained that he was innocent and did not accept responsibility for his actions. In his allocution to the court, he stated that he did not care what sentence was imposed because he was already serving 105 years in prison.

¶ 10. The prosecutor recommended a sentence of ten years on each count, to be served consecutively. Defense counsel asked for a prison term of "half' of what the State recommended. The court imposed the sentence requested by the State. Davis filed a postcon-viction motion seeking modification of his sentence, which was denied. He now appeals.

DISCUSSION

A. Sentencing Issues.

¶ 11. Davis's first argument is that the trial court erroneously exercised its sentencing discretion by failing to consider his "youth." He was fourteen years, nine months old at the time these crimes were committed. We reject Davis's contention.

¶ 12. There is a consistent and strong policy against interference with the discretion of the trial court in passing sentence. State v. Paske, 163 Wis. 2d 52, 61-62, 471 N.W.2d 55 (1991). This policy is based on the great advantage the trial court has in considering the relevant factors and the demeanor of the defendant. State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984). Furthermore, the trial court is presumed to have acted reasonably, and the burden is on the appellant to show some unreasonable or unjustifiable basis in the record for the sentence. State v. Thompson, 172 Wis. 2d 257, 263, 493 N.W.2d 729 (Ct. App. 1992). A trial court's sentence is reviewed for an erroneous exercise of discretion. Paske, 163 Wis. 2d at 70.

¶ 13. It is similarly well-established and undisputed by the parties in this case, that trial courts must consider three primary factors in passing sentence. Those factors are the gravity of the offense, the character of the defendant, and the need to protect the public. Id. at 62. The weight to be given to each of the factors, however, is a determination particularly within the discretion of the trial court. Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). After consideration of all relevant factors, the sentence may be based on any one of the three primary factors. State v. Krueger, 119 Wis. 2d 327, 338, 351 N.W.2d 738 (Ct. App. 1984).

¶ 14. The sentencing court may also consider additional factors including,

the defendant's criminal record, history of undesirable behavior patterns, personality and social traits, results of a presentence investigation, the aggravated nature of the crime, degree of culpability, demeanor at trial, remorse, repentance and cooperativeness, educational and employment history, the need for close rehabilitative control and the rights of the public.

State v. Lewandowski, 122 Wis. 2d 759, 763, 364 N.W.2d 550 (Ct. App. 1985). A defendant's age is also a secondary factor, which may be considered by the trial court in fashioning an appropriate sentence. State v. Macemon, 113 Wis. 2d 662, 667-68, 335 N.W.2d 402 (1983).

¶ 15. Finally, a sentence is unduly harsh only if the length of the sentence imposed by a trial court is "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas, 70 Wis. 2d at 185.

¶ 16. A review of the sentencing transcript demonstrates that the trial court did not erroneously exercise its discretion when it sentenced Davis. The trial court addressed the three primary factors and several of the secondary factors. Moreover, although the trial court did not specifically mention that Davis was fourteen years old when he committed these crimes, the trial court did note in the order denying Davis's post-conviction motion that it was aware of Davis's young age when it imposed the sentence. The trial court indicated that it did not assign specific weight to that factor because of the very severe nature of the crimes. As noted above, the trial court is free to assign weight to the factors it deems appropriate. Here, the nature of the offense was the factor assigned the most weight. The court noted that these assaults were aggravated and probably the most graphic, serious assaults it had seen. Davis's conduct was horrendous and "animal-like."

¶ 17. In its order denying the postconviction motion, the trial court explained further that: "This was not a case of adolescent indiscretion or impulsive teenage behavior. This case was about a vicious, predatory, animalistic, dehumanizing attack on an unsuspecting victim." It is clear from the record that the trial court was aware of Davis's young age, but that the youth factor did not operate to significantly mitigate the appropriate sentence. This did not render the trial court's decision erroneous.

¶ 18. The trial court is not required to consider a defendant's age because it is a secondary factor; moreover, even if age is addressed, the trial court determines whether it should carry any weight. Davis cites two cases from the Supreme Court for the proposition that youth is a mitigating factor at sentencing. See Eddings v. Oklahoma, 455 U.S. 104 (1982); Thompson v. Oklahoma, 487 U.S. 815 (1988). The holdings in these cases do not alter our conclusion here that the trial court properly exercised its discretion when it imposed Davis's sentence.

¶ 19. Both Eddings and Thompson involved imposition of the death penalty. That was not the case here. These Supreme Court cases do not require a trial court to give overriding mitigating significance to the young age of a defendant who has committed a serious crime. In other words, the youth factor does not automatically outweigh all of the other sentencing factors. Here, after considering the specific facts and circumstances pertinent to Davis's crimes, the trial court gave the severity of the crime the most weight. The trial court also concluded that Davis had a very poor character, evidenced in part by his refusal to accept responsibility for his actions despite the undis-putable DNA evidence that linked him to this crime. Finally, the trial court found that Davis's refusal to acknowledge responsibility also goes to the risk of committing future acts and that the need to protect the community from Davis was extremely high. Clearly, the trial court determined that the three primary factors outweighed any mitigating effect that the young age may have offered. This did not constitute an erroneous exercise of discretion.

¶ 20. Davis next contends that the trial court imposed a sentence that constituted cruel and unusual punishment and was excessive. We disagree.

¶ 21. The test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical in Wisconsin. In addressing the Eighth Amendment claim, we look to whether the sentence was "so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." State v. Pratt, 36 Wis. 2d 312, 322, 153 N.W.2d 18 (1967) (citations and internal quotation marks omitted). Likewise, as we have seen, a sentence is harsh only when it is "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment or reasonable people concerning what is right and proper under the circumstances." Ocanas, 70 Wis. 2d at 185.

¶ 22. Here, Davis failed to satisfy both standards. The crimes Davis committed were horrendous. The lack of remorse was detestable. The impact on the victim was devastating. She has lived in fear since the night of the attack. She cannot work and is at times suicidal. The facts and circumstances of this case support imposition of the maximum sentence. There was nothing shocking about the trial court's decision to impose ten years on each count.

¶ 23. Davis argues that if he had been apprehended immediately after the crimes, he would have been tried in juvenile court and would not have faced the possibility of incarceration in adult prison. He is incorrect. The 1993-94 statutes permitted waiver into adult court of a fourteen-year-old child charged with kidnapping. See Wis. Stat. § 48.18(l)(a)l (1993-94). Moreover, if the juvenile was waived into adult court, the statute permitted the district attorney to charge any other appropriate offenses for trial in adult court. Id.; State v. Karow, 154 Wis. 2d 375, 379-82, 453 N.W.2d 181 (Ct. App. 1990). Further, it would be unjust for this court to conclude that a juvenile who avoids apprehension until he is an adult should be given the benefit of his illegal actions. In sum, we cannot conclude that the sentence imposed is either excessive or that it violates the Eighth Amendment.

¶ 24. Davis next contends that the trial court erroneously exercised its discretion when it imposed consecutive sentences without an adequate explanation of why that was the minimum amount of time necessary. We reject this claim.

¶ 25. The trial court explained why the maximum term was required in this case. It stated that these crimes were quite probably the most aggravated sexual assaults it had seen. It described Davis as having the poorest character. There is reference in the sentencing transcript to the callousness of Davis while he was committing the assaults and the fact that after the repeated violations of the victim over a period of forty-five minutes, he got up, took the victim's tacos, and walked away. The trial court explained that it was very concerned about the need to protect the community from Davis, who refused to acknowledge responsibility for the crimes he committed.

¶ 26. The trial court did note and gave Davis credit for not contesting the State's proof, which resulted in the victim not having to testify. Nonetheless, the trial court found that Davis's failure to accept that he was guilty of these crimes reflected poorly on his character. The trial court's explanation for imposing the maximum sentence complied with Wisconsin law. The court must provide an explanation for the general range of the sentence imposed, not for the precise number of years chosen, and it need not explain why it did not impose a lesser sentence. State v. Gallion, 2004 WI 42, ¶¶ 49-50, 54-55, 270 Wis. 2d 535, 678 N.W.2d 197. The trial court provided an adequate explanation for the general range of the sentence imposed.

¶ 27. We also conclude that there was an adequate explanation as to why consecutive rather than concurrent sentences were imposed. The trial court indicated that it was imposing consecutive sentences because each count was an independent act, independent of the other, and independent of the previous sentence Davis was currently serving. A trial court is permitted wide discretion in determining whether to impose a concurrent or consecutive sentence. Paske, 163 Wis. 2d at 61; Wis. Stat. § 973.15(2).

¶ 28. Here, the trial court found that it was appropriate to impose consecutive sentences. We agree. Davis violated the victim in four different ways in connection with the counts for which he was convicted. The four assaults, each charged as a separate count included penis-to-vagina, penis-to-mouth, penis-to-anus and finger-to-anus. The entire episode took approximately forty-five minutes to one hour. This was not a quick, brief, passing series of assaults that could be lumped into one event. Davis took his time and each event was separate and distinct. After Davis committed the penis-to-vagina assault, he could have stopped and walked away. He did not. After Davis could not penetrate the victim's anus, he could have aborted that assault. He did not. He searched her purse for some lotion, which he then used to allow him to penetrate the victim's anus. The same is true for the other two counts — Davis could have stopped and walked away. He did not. There is sufficient reason to impose consecutive rather than concurrent sentences under the facts and circumstances of this case.

B. John Doe Complaint!Statute of Limitations Issue.

¶ 29. Davis argues that the complaint filed in this case was insufficient to confer personal jurisdiction and therefore the amended complaint, which actually identified Davis by name, was filed after the statute of limitations expired. We reject Davis's arguments.

¶ 30. As noted earlier in this opinion, the State filed a "John Doe" complaint to initiate this case on August 30, 2000, twelve days before the expiration of the statute of limitations. The complaint identified the defendant by a particular DNA profile using the RFLP technique. The complaint stated that the DNA profile had been run against the convicted offender index of the Wisconsin DNA databank and no matches to the profile from known offenders were obtained.

¶ 31. On September 4, 2002, the State filed an amended criminal complaint in this case identifying Davis as the John Doe whose DNA profile matched that of the DNA retrieved from the semen in the victim's underwear. In 1998, the state crime lab stopped performing the RFLP-DNA analysis and converted to a new DNA technology known as PCR. The two technologies were different; one could not compare an RFLP-DNA profile to a PCR-DNA profile. As a result, during 1998 and 1999, the state crime lab re-analyzed all evidentiary samples which had previously generated RFLP-DNA profiles under the new PCR-DNA technology, so that the profiles could be compared to the offender database. When the sample in this case was re-analyzed producing a PCR-DNA profile, it was compared to all of the convicted offender samples in the database, and a match was found. Davis's DNA profile matched that of the PCR-DNA sample generated from the semen in the victim's underwear. Based on this information, the State obtained a search warrant to take an oral swab directly from Davis, who was incarcerated. The DNA results from this oral swab also matched that of the DNA sample generated from the semen in the victim's underwear. Based on this information, the amended complaint charged Davis with the kidnapping and sexual assaults by substituting his name for that of John Doe.

¶ 32. Davis claims that this procedure violated the statute of limitations and should not be permitted. We disagree. We have previously ruled that the State is permitted to file a complaint, which identifies the defendant only by his DNA profile. See State v. Dabney, 2003 WI App 108, ¶ 15, 264 Wis. 2d 843, 663 N.W.2d 366. Davis acknowledges that Dabney permits this procedure, but contends that his case is distinguishable from Dabney.

¶ 33. Specifically, he argues that because the original complaint identified the DNA profile using a different technology than the amended complaint which eventually led to his identification, this case is distinguishable from Dabney. In other words, he suggests that because the RFLP-DNA profile identified in the complaint was not the profile used to identify him by name, the amended complaint does not relate back to a date preceding the expiration of the statute of limitations. We are not persuaded.

¶ 34. The DNA was the same. Both the RFLP-DNA profile and the PCR-DNA profile contained Davis's DNA exclusively. His argument elevates form over substance. The State specifically identified Davis's DNA in a complaint before the statute of limitations expired. The fact that the type of DNA analysis technology changed does not somehow alter the accuracy of the identification. The person with the DNA in the original complaint was the same person with the DNA in the amended complaint — Davis. Thus, his claim that the analysis was different is of no consequence. His DNA did not change, but remained the same. Thus, it satisfied the reasonable certainty requirements for an arrest warrant and answered the "who is charged" question required for a sufficient complaint. Id. Thus, the trial court did not err in finding that the complaint was sufficient.

By the Court. — Judgment and order affirmed.