author: WILLIAM A. BABLITCH, J.

text:
    Karen R. Yocherer and Lance H. Yocherer, Plaintiffs-Respondents, v. Farmers Insurance Exchange, Defendant-Appellant-Petitioner.

    Supreme Court

      No. 00-0944.

      Oral argument November 6, 2001.

    Decided April 30, 2002.

    2002 WI 41
    (Also reported in 643 N.W.2d 457.)

      For the defendant-appellant-petitioner there were briefs by Douglas J. Carroll, Timothy D. Pagel and O'Neill, Schimmel, Quirk & Carroll, S.C., Milwaukee, and oral argument by Douglas J. Carroll.

    For the plaintiffs-respondents there was a brief by William G. Ladewig, Sharon K. Iggens and Ladewig and Rechlicz, Menomonee Falls, and oral argument by William G. Ladewig.

       Motion for reconsideration denied 6/4/02.

   WILLIAM A. BABLITCH, J.

¶ 1. Farmers Insurance Exchange (Farmers) petitions this court to review a decision of the court of appeals which held that, in this underinsured motorist claim, the date of the accident is not necessarily the date of loss for purposes of seeking coverage under the insurance contract within the statute of limitations. Here, Karen and Lance Yocherer did not make a claim against their underinsured carrier, Farmers, until all claims against the tortfeasors were settled and their carrier terminated arbitration proceedings against them. The court of appeals concluded that the action was timely filed, measuring from the date of termination of the arbitration. We agree that the action was commenced within the statute of limitations, but we conclude the appropriate date of loss was the date of settlement with the tortfeasors. For actions seeking coverage under an underinsured motorist policy, the statute of limitations begins to run from the date of loss, which is the date on which a final resolution is reached in the underlying claim against the tortfeasor, be it through denial of that claim, settlement, judgment, execution of releases, or other form of resolution, whichever is the latest. Accordingly, we affirm.

rH

¶ 2. On October 22, 1987, Karen Yocherer was injured in an automobile accident caused by the alleged negligence of two other drivers, Katherine Noyes and Jeffrey Barnes. At that time, Yocherer was insured under an automobile insurance policy issued by Farmers, which contained an underinsured motorist coverage provision. Barnes was also insured by Farmers. Noyes was insured by American Family.

¶ 3. On February 16, 1995, Yocherer settled her claims against Barnes and Noyes and reserved any claims she might have under her own underinsured motorist policy with Farmers. She then conducted settlement negotiations with Farmers that proved unsuccessful. Pursuant to the policy, the parties then commenced arbitration proceedings. On February 12, 1997, almost nine and one-half years after the accident, Farmers terminated the arbitration process and advised her that the statute of limitations under Wis. Stat. § 893.43 (1997-98) had expired. This statute requires that an action upon a contract be commenced within six years after the cause of action accrues.

¶ 4. On May 16, 1997, Karen and Lance Yocherer (Yocherers) filed a complaint against Farmers in Washington County Circuit Court. The Yocherers alleged claims of bad faith, breach of contract, declaratory relief, and estoppel. Farmers answered and asserted affirmative defenses based on the statute of limitations, estoppel, and laches.

¶ 5. Farmers then moved for dismissal. Farmers argued that the statute of limitations under Wis. Stat. § 893.43 barred the Yocherers' action. It contended that the Yocherers' rights under their underin-sured motorist coverage accrued upon the injury, that is the date of the accident, at which time there was a presentable claim even though no breach of contract. As a result, the Yocherers' action was untimely because it was brought more than nine years after the date of the accident. Farmers also argued that the doctrines of laches and equitable estoppel barred the Yocherers' action.

¶ 6. In response, the Yocherers argued that the statute of limitations commenced on February 12,1997, the date on which Farmers allegedly breached the insurance contract by terminating the arbitration proceedings. The Yocherers argued that, until Farmers effectively denied the requested underinsured motorist benefits, they did not have a viable claim for breach of contract. They also argued that the doctrines of laches and equitable estoppel did not apply because again, before February 12, 1997, there was no indication that Farmers had breached the insurance policy contract by refusing to pay underinsured motorist coverage benefits. Therefore, their action was timely filed.

¶ 7. The circuit court, the Honorable Leo Schlaefer presiding, denied Farmers' motion to dismiss. The court noted that neither party disputed that the underinsured claim was in contract and that the six-year statute of limitations applied. Therefore, the only question was when the statute of limitations commenced. The court recognized the concerns of Farmers, stating that, if the date of loss was not the date of accident, delays could theoretically occur in asserting and resolving underinsured motorist coverage claims. Nevertheless, the court relied on Abraham v. General Casualty Co., 217 Wis. 2d 294, 576 N.W.2d 46 (1998), and held that a contract cause of action accrued at the time that the contract was breached, which in this case was the time at which Farmers terminated the arbitration proceedings. The court found no basis for Farmers' laches or equitable estoppel claims, concluding that the record lacked any showing that Farmers breached any insurance policy contract prior to February 12, 1997. The court then ordered the parties to proceed with arbitration, and the arbitrators ruled in favor of the Yocherers. The circuit court then affirmed that award and entered judgment in favor of the Yocherers. Farmers appealed.

¶ 8. The court of appeals affirmed in an unpublished opinion. Like the circuit court, the court of appeals relied on Abraham. The court of appeals concluded that Abraham unequivocally stated that a breach of contract occurs when the insurer denies underinsured motorist benefits requested from an insured. Based on this conclusion, the court held that Farmers had breached its contract when it advised Karen Yocherer on February 12, 1997, that it would no longer consider her claim because the statute of limitations had expired. The statute of limitations, the court concluded, began running on that date. As a result, the Yocherers' breach of contract action against Farmers was commenced within the six-year statute of limitations under Wis. Stat. § 893.43.

II

¶ 9. We address two issues. First, we examine whether the Yocherers' action was timely filed under Wis. Stat. § 893.43. Second, we examine whether the action is barred under the doctrines of laches and equitable estoppel.

A. Statute of Limitations

¶ 10. The parties do not dispute that the applicable statute of limitations is Wis. Stat. § 893.43, which states that "[a]n action upon any contract. . . shall be commenced within 6 years after the cause of action accrues or be barred." Thus, as the court of appeals recognized, the issue is when does a cause of action accrue against an underinsured motorist carrier for coverage under the policy. This question requires that we interpret both the statute and the insurance policy, which are questions of law that we decide de novo. Magyar v. Physicians Ins. Co., 2001 WI 41, ¶ 8, 242 Wis. 2d 491, 625 N.W.2d 291.

¶ 11. Farmers asserts that the decisions from the circuit court and the court of appeals both ignore the longstanding rule established prior to Abraham that, when the contract involved is an insurance policy, a cause of action on the policy accrues on the date of loss for purposes of Wis. Stat. § 893.43. Farmers specifically relies on Gamma Tau Educational Foundation v. Ohio Casualty Insurance Co., 41 Wis. 2d 675, 680, 165 N.W.2d 135 (1969). Farmers argues that the date of the loss in Yocherers' case was, pursuant to the language of the policy, the date of the accident. Our holding in Abraham, Farmers contends, should not and cannot be read as overruling this longstanding rule. If it must be read in this manner, Farmers asks us to overrule Abraham because the rule of law under Abraham makes bad law, violates common sense, and contravenes the public policy and legislative intent expressed in the statute of limitations.

¶ 12. Gamma Tau involved an action brought under a general liability policy. Specifically, the insured chapter house of a fraternity brought an action on an insurance policy seeking recovery for damages sustained after an employee of the chapter embezzled $12,000. Gamma Tau, 41 Wis. 2d at 677-78. The policy protected the chapter house against " 'loss of money, securities and other property which the insured shall sustain through any fraudulent or dishonest act or acts committed by any of the employees.'" Id. at 678. This court examined whether the action was timely commenced under the applicable statute of limitations, which, like here, provided for a six-year period within which to bring an action upon a contract. Id. at 680. We noted that "[t]he general rule is that the right of action of the insured accrues against the insurer on the date of the loss." Id. (citing Rock County Sav. & Trust Co. v. London Assurance Co., 17 Wis. 2d 618, 620, 117 N.W.2d 676 (1962)). We concluded that the action was untimely, measuring from the date that the employee's thefts occurred. Id. at 680, 684. In other words, we concluded that the date of the loss — the date of the last known theft — controlled. In the process, we rejected the plaintiffs claims that the statute of limitations should be measured from the date of the discovery of the employee's thefts or from the date of the discovery of the policy. Id. at 680-83. We also rejected the plaintiffs argument that the statute of limitations did not begin to run until all the conditions precedent to the commencement of a suit had been met. Id. at 681-82.

¶ 13. In Effert v. Heritage Mutual Insurance Co., 160 Wis. 2d 520, 527, 466 N.W.2d 660 (Ct. App. 1990), the court of appeals addressed a statute of limitations question involving an uninsured motorist policy. In that case, Effert was involved in an automobile accident with another driver. Id. at 523. Effert settled a claim with her insurer for personal property damage and then commenced an action against the owner of the other vehicle and his insurer for damages sustained as a result of the accident. Id. After learning that the owner's insurer was insolvent, Effert then submitted a claim with her insurer under the uninsured motorist provision of her policy. Id. After some negotiation, Effert's insurer advised her that it would no longer consider her claim because the six-year statute of limitations had expired. Id. Effert made a written demand to the owner's insurer for arbitration, but it refused and the circuit court dismissed Effert's action to compel the owner's insurer to arbitrate. Id. at 523-24.

¶ 14. The issue was "when the statute of limitations commenced on Effert's claim arising under the uninsured motorist provisions of her insurance contract." Id. at 524. The court rejected the argument that the statute of limitations, as it applied to Effert's insurer, began to run on the date of the accident. Id. at 525. The court then noted as follows:

We perceive two distinct and conflicting approaches to determining when the statute of limitations commenced. Under basic contract analysis, the cause of action accrued and the statute began to run when Heritage [Effert's insurer] breached the contract by refusing to arbitrate Effert's claim [in 1990]. However, there is also support for the proposition that the statute of limitations begins to run on an insurance action when the insured first has a claim against the insurer. Under this latter analysis, Effert first had a claim against Heritage when Iowa [the owner's insurer] became insolvent in 1985. Because under either analysis no statute of limitations bars Effert's claim, it is unnecessary to decide which is the correct analysis.
Turning first to contract, we note that a contract claim arises when the contract is breached. Segall v. Hurwitz, 114 Wis. 2d 471, 490, 339 N.W.2d 333, 343, (Ct. App. 1983). Heritage breached the insurance contract when it refused to arbitrate Effert's claim as required under the insurance contract. Under contract analysis this conduct commenced the statute of limitations because it was then that Heritage refused to comply with the terms of the insurance contract with Effert.
[Alternatively, i]n Gamma Tau Educ. Found. v. Ohio Cas. Ins. Co., 41 Wis. 2d 675, 680, 165 N.W.2d 135, 137, (1969), the court held that the insured's right of action against the insurer accrued on the date of loss. We read that case to mean that the cause of action accrued when the insured first had a claim against the insurer. We make this interpretation because a cause of action accrues when there is a claim capable of present enforcement. Les Moise, 122 Wis. 2d at 57, 361 N.W.2d at 656. In Gamma Tau, the date of loss marked when the insured could submit a claim to the insurer. In the present case, Effert could not have sought recovery from Heritage until Iowa became insolvent because no claim under the uninsured motorist coverage had yet accrued. We therefore read "date of loss" to be when a presentable claim existed. In many cases these dates will be contemporaneous, but in this case they are different.

Id. at 525, 527 (emphases added). Effert recognized that the Gamma Tau date of loss requirement did not necessarily mean the date of the accident. Instead, the date of loss meant the date on which a claim may be brought.

¶ 15. In Abraham, we examined a similar statute of limitations question for an underinsured motorist policy. Abraham was injured when he was struck by an automobile while riding his bicycle. Abraham, 217 Wis. 2d at 297-98. At that time, Abraham was insured under an underinsured automobile insurance policy by General Casualty. Id. at 298. The policy stated that General Casualty agreed to pay underinsured motorist coverage only after the limits of any applicable liability policy had been exhausted by payment of judgment or settlement. Id. After negotiating with the tortfeasor's insurer (State Farm), Abraham notified General Casualty in a September 25,1990 letter that he intended to settle for the full amount of the tortfeasor's liability policy and to seek no-fault liability benefits from State Farm. Id. In this same letter, Abraham asked his insurer to pay State Farm's liability policy limits and the no-fault benefits. Id. Approximately two weeks later, on October 8, 1990, General Casualty sent a letter to Abraham refusing to pay State Farm's policy limits and granted permission for Abraham to accept the policy limits provided by State Farm. Id. at 298-99. General Casualty then refused to pay Abraham's underinsured motorist benefits, which prompted Abraham to commence an action against General Casualty on September 30, 1994. Id. at 299. The action sought a judgment declaring that the policy provided underinsured motorist coverage and an order requiring General Casualty to arbitrate in good faith. Id.

¶ 16. General Casualty moved to dismiss arguing that the applicable statute of limitations had expired. Id. Specifically, it alleged that Abraham's lawsuit was a "foreign cause of action" within the meaning of Wisconsin's borrowing statute and that Florida's five-year statute of limitations for actions upon contract should therefore apply to render Abraham's suit untimely. Id. We concluded, however, that the borrowing statute did not apply to Abraham's claim, and we therefore examined Wis. Stat. § 893.43 (1993-94) to determine whether the action was timely commenced. Id. at 313. We concluded as follows:

As mentioned above, the alleged breach of contract by General Casualty occurred at the earliest in October 1990. Abraham subsequently filed his claim on September 30, 1994. Therefore, Abraham's action falls well within the six-year period provided under Wisconsin law, see CLL Assocs. Ltd. Partnership v. Arrowhead Pacific Corp., 174 Wis. 2d 604, 607, 497 N.W.2d 115 (1993) (holding that a contract cause of action under Wis. Stat. § 893.43 accrues at the moment the contract is breached), and his cause of action for breach of contract may proceed accordingly.

Id.

¶ 17. Abraham did not overrule the existing rule of law for insurance policies, i.e., that the date of the loss controls. Although Abraham's reliance on CLL Associates, which involved a claim on a construction contract not an underinsured motorist policy, may have been misplaced, the court pointed to the correct date on which the statute of limitations began to run. That date was the date of the loss, that is, the date on which a presentable claim existed for Abraham against his insurer. For claims seeking underinsured motorist coverage, the date on which a presentable claim exists is the date on which the insured resolves his or her claims against the tortfeasors, whether it was by settlement or judgment or another form of final resolution. In Abra ham, no formal settlement or judgment was entered. However, in its October 1990 letter, General Casualty implicitly recognized a settlement by granting Abraham permission to accept State Farm's policy limits. Thus, the earliest date that Abraham may have had a presentable claim was on that date, which still would have been within the statute of limitations.

¶ 18. Farmers argues that the date of loss was the date of the accident because the Yocherers could have taken immediate action on their policy for uninsured motorist coverage for the damages sustained by both Noyes and Barnes. Farmers contends that the existence of other insured motorists did not preclude the Yocher-ers from making a claim for uninsured motorist coverage and that the Yocherers did not have to show that there was no other available liability insurance to collect on their uninsured motorist policy.

¶ 19. It also points to the following policy language:

Additional Definitions Used In This Part Only
As used in this part:
3. Uninsured motor vehicle means a motor vehicle which is:
b. Insured by a bodily injury liability .. . policy at the time of the accident which provides coverage in amounts less than the limits of Uninsured Motorist Coverage shown in the Declarations.

Farmers argues that underinsured motor vehicles are included under this definition and asserts that, as of the date of the accident, both tortfeasors' vehicles were underinsured motor vehicles under this definition because the Yocherers knew that their damages would exceed the tortfeasors' insurance coverage. In turn, Farmers contends that the Yocherers had an immediate right and cause of action on the underinsured motorist policy following the accident.

¶ 20. We do not construe the policy language cited by Farmers as requiring this action to be commenced on the date of the accident. The language does not specifically require the filing of a claim at the time of the accident. Further, the facts, as they were presented at the time of the accident, did not lend themselves to a presentable claim. An insured should not be required to proceed at the time of the accident under his or her underinsured motorist policy without any knowledge of the underlying tortfeasors' liability or coverage or the insured's own potential contributory negligence. For these reasons, we conclude that the cause of action in this case appropriately accrued on the date on which there was a presentable claim, which was the date of the settlement.

¶ 21. In this case, the Yocherers are specifically seeking benefits under their underinsured motorist provision of their policy. Under this insurance provision, it must first be determined whether underinsured coverage even comes into play. To do this, it must be determined whether the insured is entitled to recover damages from the tortfeasor and whether the bodily injuries sustained by the insured arose out of the ownership, maintenance, or use of the tortfeasor's vehicle. Then it must be determined whether the insurance of the tortfeasor is insufficient to cover the loss. Thus, the cause of action appropriately accrues at the time when there has been final resolution to the underlying tort claim.

¶ 22. We hold that the date of loss for actions seeking coverage for underinsured motorist coverage is the date on which there has been a final resolution of the underlying claim with the tortfeasor, be it through denial of the claim, settlement, judgment, execution of releases, or other form of resolution. The date of settlement or judgment as the date of loss has been regarded as the fair rule of law. Specifically, it has been stated that:

Waiting until the point of settlement seems to balance the equities concerned by protecting insurance companies against stale claims, while satisfying the insurance carriers' desire to insure that all other avenues of recovery are exhausted before they become entangled in the issue. It also gives insureds a reasonable opportunity to assess their claim.

Jeffery A. Kelso and Matthew R. Drevlow, When Does the Clock Start Ticking? A Primer on Statutory and Contractual Time Limitation Issues Involved in Uninsured and Underinsured Motorist Claims, 47 Drake L. Rev. 689, 696 (1999). We agree with this reasoning. Applying this standard to the current case shows that it was clearly within the statute of limitations: the date that the settlement was reached was on February 16, 1995 and the current action was commended on May 16, 1997, clearly within the six-year statute of limitations.

B. Laches and Equitable Estoppel

¶ 23. We next review whether the doctrines of laches or equitable estoppel bar the action in this case. Farmers correctly contends that, under the doctrine of laches, if there is unreasonable delay, knowledge of the course of events and acquiescence therein, together with prejudice to the party asserting the defense, a claim is barred. Paterson v. Paterson, 73 Wis. 2d 150, 153, 242 N.W.2d 907 (1976). Farmers bears the burden of showing that it was prejudiced by the delay. Schultz v. Kuerschner, 1 Wis. 2d 509, 516, 85 N.W.2d 500 (1957). Farmers cites generally to the history of this case to support its argument that the doctrine applies. Specifically, it points to the formal pleading filed against the tortfeasors in which the Yocherers identified that their damages exceeded the liability coverage. Farmers asserts that this shows that the Yocherers knew they had a presentable claim for underinsured motorist coverage during this time but did not take action on it. Further, it contends that, because almost 10 years passed between the time of the accident and the filing of the action, there is significant prejudice to them in this case.

¶ 24. We, however, agree with the circuit court and the court of appeals that, under the facts of this case, the doctrine does not apply because there is no evidence of unreasonable delay on the part of the Yocherers. During the nine year period, the Yocherers informed Farmers that a claim against it would be taken at some point. Further, Farmers was part of the underlying tort action the entire time. Therefore, we conclude that Farmers failed to meet its burden in showing prejudice. In addition, the Yocherers' decision to proceed with arbitration first, and then, at the conclusion of the arbitration, file an action against Farmers, constituted neither error nor delay.

¶ 25. The doctrine of equitable estoppel "consists of action or nonaction on the part of the one against whom the estoppel is asserted which induces reliance thereon by another, either in the form of action or nonaction, to his detriment." City of Milwaukee v. Milwaukee County, 27 Wis. 2d 53, 66, 133 N.W.2d 393 (1965). Again, Farmers bears the burden of proving each element by clear and convincing evidence. St. Paul Ramsey Med. Ctr. v. DHSS, 186 Wis. 2d 37, 47, 519 N.W.2d 681 (Ct. App. 1994). In short, this doctrine does not apply in this case because Farmers has failed to meet its burden by providing facts to show that it relied upon any actions of the Yocherers to its detriment. We again agree with the circuit court and the court of appeals that this claim is without merit.

f — i I — I HH

¶ 26. In sum, we conclude that, under the facts of this case, the date of settlement was the appropriate date of loss for statute of limitations purposes. Using this date, we conclude that the Yocherers' action was timely filed. Thus, we affirm the court of appeals' decision that the Yocherers' action was commenced within the six-year statute of limitations under Wis. Stat. § 893.43. The doctrines of laches and equitable estoppel do not apply.

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

       The terms of the uninsured/underinsured motorist insurance coverage were as follows:

        Coverage C - Uninsured Motorist Coverage (Including Underin-sured Motorists Coverage):
      We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.
      Determination as to whether an insured person is legally entitled to recover damages or the amount of damages shall be made by agreement between the insured person and us. If no agreement is reached, the decision will be made by arbitration.

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

       Attention must be paid to the language of the policy. We note that other policies have specifically required either judgment or settlement of underlying liability policies before coverage will be provided. See Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, ¶ 3, 245 Wis. 2d 186, 629 N.W.2d 150. Such language provides a clear indication of when the policy comes into play and when a presentable claim exists for the insured. The record contains a policy endorsement containing such language; however, the endorsement is dated March 1992, well after the date of the accident in 1987. For this reason, we do not consider it.


source: Caselaw Access Project

author: JON E WILCOX, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Gerard Noel Haas, Jr., Petitioner-Petitioner, v. William McReynolds, Sheriff of Racine County, Respondent.
    Supreme Court

      No. 00-2636-W.

      Oral argument March 11, 2002.

    Decided April 30, 2002.

    2002 WI 43
    (Also reported in 643 N.W.2d 771.)

      For the petitioner-petitioner there were briefs by Robert G. Bernhoft and The Law Office of Robert G. Bernhoft, Milwaukee, and oral argument by Robert J. Bernhoft.

    For the respondent there was a brief and oral argument by Matthew W. McVey, assistant corporation counsel.

       Motion for reconsideration denied 6/24/02.

   JON E WILCOX, J.

¶ 1. In this case we review an unpublished order of the court of appeals, which dismissed a petition for a writ of habeas corpus filed by Gerard N. Haas, Jr. The Racine Municipal Court issued seven commitment orders for Haas after he had failed to pay forfeitures to the city for various ordinance violations. Haas was apprehended by the Racine Police Department and transferred to the custody of the Racine County Sheriffs Department for confinement in the Racine County Jail.

¶ 2. Haas challenged his confinement by filing a petition for a writ of habeas corpus with the Racine County Circuit Court, Allan B. Torhorst, Judge. In the petition, Haas challenged the jurisdiction of the municipal court to issue the commitments. The circuit court issued an initial stay of the execution of Haas's jail sentence and ordered him released without bond, pending a hearing. At that hearing, the circuit court denied Haas's request for the writ.

¶ 3. Haas then filed a notice of his intent to appeal the circuit court's decision. Within a few days, Haas also filed a separate petition for a writ of habeas corpus with this court. Haas then voluntarily withdrew his appeal of the first petition. This court transferred the second habeas corpus petition to the court of appeals for disposition. The court of appeals denied the second petition because (1) Haas was not restrained of his liberty at the time of the request, and (2) Haas was not entitled to habeas corpus relief because he voluntarily dismissed his direct appeal. Haas petitioned this court for review, and we accepted. We now affirm the court of appeals' decision.

1 — I

¶ 4. On February 10, 2000, Haas was arrested by the City of Racine Police Department pursuant to seven commitment orders issued by the Racine Municipal Court and Signed by Municipal Judge Robert Michelson. The commitments were issued for failure to pay forfeitures that had been levied as a result of municipal ordinance violations — three for failure to abate lead, two for operating a vehicle after revocation, one for a health code violation, and one for failure to remove snow and ice. Haas was transferred to the custody of the Racine County Sheriffs Department, who, pursuant to the orders, committed Haas to the Racine County Jail.

¶ 5. The next day, Haas filed a petition for a writ of habeas corpus with the Racine County Circuit Court, in which he challenged the municipal court's jurisdiction to issue the commitments. Haas claimed that the municipal court lacked subject matter jurisdiction because it did not have the authority to issue "contempt orders." The circuit court ordered that Haas be temporarily released without bond until a hearing could be held on the merits of the habeas corpus petition.

¶ 6. On June 9, 2000, the circuit court conducted a hearing on the petition. In an order dated June 29, 2000, the circuit court held that: (1) there was legal cause for Haas's imprisonment; (2) the Racine Municipal Court acted within its jurisdiction; (3) Haas's due process rights were not violated; (4) there was no reasonable basis for Haas's habeas corpus petition; and (5) the petition was frivolous. The circuit court vacated its temporary order, ordered that Haas be taken into custody pursuant to the municipal commitments, and ordered that Haas reimburse the county for costs.

¶ 7. On September 27, 2000, Haas, proceeding pro se, filed a notice of appeal pursuant to Wis. Stat. § (Rule) 809.10(1) (1999-2000) to challenge the circuit court's denial of his first petition. On October 3, 2000, Haas filed a separate habeas corpus petition directly with this court, asking us to exercise our original jurisdiction to grant the writ. This petition addressed the same issues that had been raised before the circuit court in the first petition. This court determined that the court of appeals had concurrent jurisdiction to consider Haas's second petition, and we transferred that petition to the court of appeals for disposition.

¶ 8. On December 6, 2000, Haas filed notice with the court of appeals asking that his appeal of the circuit court's denial of his first petition be voluntarily dismissed, pursuant to Wis. Stat. § (Rule) 809.18. Because the court of appeals had not yet issued an opinion in the appeal, it was required to honor Haas's request to withdraw the appeal. State v. Lee, 197 Wis. 2d 959, 972, 542 N.W.2d 143 (1996). Haas's direct appeal of the first petition was dismissed in an order dated December 14, 2000.

¶ 9. In an unpublished summary opinion dated February 12, 2001, the court of appeals then ruled on Haas's second habeas corpus petition. Relying primarily on State ex reL. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), the court of appeals held that (1) Haas had been released and was no longer restrained of his liberty; and (2) Haas had an adequate alternative remedy, namely, his appeal of the circuit court's denial of his first habeas corpus petition, which he had voluntarily dismissed. Id. at 451. Based on these holdings, the court of appeals concluded that Haas was not entitled to the separate writ of habeas corpus and denied Haas's petition.

¶ 10. Haas petitioned this court for review of the court of appeals decision, and we accepted. On review, we affirm the decision of the court of appeals on the grounds that Haas had an adequate alternative remedy available to him. Because Haas could have sought (and in fact started to seek) a direct appeal of the first habeas corpus petition to address the same issues he now raises, he was not entitled to a separate writ. Because we decide the case on those grounds, we do not address the questions of whether or not Haas was in custody when he petitioned for the writ, or whether the municipal court had jurisdiction to issue the commitments.

II

¶ 11. The writ of habeas corpus has its origins in the common law, and its availability is guaranteed by the U.S. Constitution, the Wisconsin Constitution, and by state and federal statute. Fuentes, 225 Wis. 2d at 450 (citing State ex rel. Korne v. Wolke , 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977); State ex rel. Durner v. Huegin , 110 Wis. 189, 220, 85 N.W. 1046 (1901)); see also U.S. Const. art. I, § 9, cl. 2; Wis. Const, art. I, § 8(4); 28 U.S.C. § 2241; Wis. Stat. § 782.01. Habeas corpus is essentially an equitable remedy, which is available to a petitioner when there is a pressing need for relief or where the process or judgment by which a petitioner is held is void. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 729-30, 516 N.W.2d 714 (1994). The writ has a unique character in that the petition normally arises pursuant to a criminal proceeding, but is litigated as an independent civil proceeding. Fuentes, 225 Wis. 2d at 450-51.

¶ 12. As an extraordinary writ, habeas corpus is available to a petitioner only under limited circumstances. First, a party who seeks habeas corpus relief must be restrained of his or her liberty. Id. at 451 (citing State ex rel. Hake v. Burke, 21 Wis. 2d 405, 124 N.W. 2d 457 (1963); State ex rel. Wohlfahrt v. Bodette, 95 Wis. 2d 130, 132-33, 289 N.W.2d 366 (Ct. App. 1980)). Additionally, a party seeking the writ must show that the restraint was imposed by a body without jurisdiction or that the restraint was imposed contrary to constitutional protections. Id. (citing State ex rel. Warrender v. Kenosha County Court, 67 Wis. 2d 333, 339, 231 N.W.2d 193 (1975); Wolke v. Fleming, 24 Wis. 2d 606, 613-14, 129 N.W.2d 841 (1964); Edwin E. Bryant, 9 Wisconsin Pleading and Practice § 84.03, at 223-24 (3d ed. 1998)). Finally, a party seeking the writ must show that there was no other adequate remedy available in the law. Id. (citing Dowe, 184 Wis. 2d at 729). Unless these criteria are met, the writ of habeas corpus will not be available to a petitioner.

¶ 13. In this case, William McReynolds, as Racine County Sheriff, challenges Haas's second habeas corpus petition on several grounds. McReynolds puts forward three arguments supporting the denial of the writ: (1) Haas was not in custody at the time of the petition; (2) successive writs are disallowed under Wisconsin law; and (3) Haas had an adequate alternative remedy. We find it necessary to address only the third argument, as our finding there is dispositive.

¶ 14. The writ of habeas corpus does not issue as a right. State ex rel. Doxtater v. Murphy, 248 Wis. 593, 602, 22 N.W.2d 685 (1946). We have long and consistently held that the extraordinary writ of habeas corpus is not available to a petitioner when the petitioner has other adequate remedies available. Fuentes, 225 Wis. 2d at 451; State ex rel. Jacobus v. State, 208 Wis. 2d 39, 46-47, 559 N.W.2d 900 (1997); Dowe, 184 Wis. 2d at 733-34; Wolke, 24 Wis. 2d at 614; Doxtater, 248 Wis. at 602. For instance, habeas corpus is not available to challenge a bindover decision by a court commissioner because the decision is challengeable on a statutory motion to dismiss. Dowe, 184 Wis. 2d at 733-34. Similarly, the writ is not available to challenge the sufficiency of probable cause to issue a criminal complaint, even when the challenge is brought between arrest and the preliminary hearing, because the challenge can be made using other remedies at trial. Wolke, 24 Wis. 2d at 613-14. Habeas corpus proceedings are likewise not available to challenge an administrative order revoking probation, since a writ of certiorari is available, and is the proper remedy under such circumstances. State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 183, 572 N.W.2d 505 (Ct. App. 1997). In short, if the petitioner has an otherwise adequate remedy that he or she may exercise to obtain the same relief, the writ will not be issued.

¶ 15. In this case, there is no question that Haas had an otherwise adequate remedy: his direct appeal, which he voluntarily dismissed. Rather than seeking a separate habeas corpus writ, the appropriate course of action for Haas should have been to challenge the circuit court's denial of his first habeas corpus petition in the court of appeals. As this court has previously stated:

A decision in a habeas corpus action now stands in no different position than one in any other proceeding. If it be desired to review it upon the merits a motion should be made in the ordinary way for a review before the circuit court. If it be desired thereafter to present the question of whether the decision rendered is right, a writ of error may be sued out of this court for that purpose.

State ex rel. Gaster v. Whitcher, 117 Wis. 668, 673, 94 N.W. 787 (1903) (citation omitted); see also State ex rel. McCaslin v. Smith, 65 Wis. 93, 97, 26 N.W. 258 (1886), where we stated:

The order made in [a habeas corpus] proceeding by the court is in the nature of a final judgment, and the policy of our constitution and laws is to allow a review of such an adjudication; and it is most in accord with our rules of practice and the analogies of the law to allow this to be done on writ of error.

¶ 16. The circuit court's denial of the first petition was a final order within the definition of Wis. Stat. § 808.03. Therefore, the court of appeals was well within its jurisdiction and its capacity to review the circuit court's decision to deny Haas's first writ, and, if necessary, to consider the underlying claim and determine whether or not the municipal court had jurisdiction to issue the commitments. If Haas had received an adverse decision on appeal, he would have then been able to petition this court for review.

¶ 17. Instead, Haas has attempted to secure the same relief available to him in an ordinary appeal by extraordinary means, after voluntarily forgoing his ordinary remedy. Under such circumstances, the extraordinary writ of habeas corpus is not available. By voluntarily withdrawing his appeal, Haas is estopped from taking this collateral route to secure the same relief.

¶ 18. Haas contends that the alternative remedy restriction should not apply because he is challenging the jurisdiction of the court rather than a judicial error. Haas misconstrues the relationship between the writ and the procedural posture of his case. In his original petition, Haas challenged the jurisdiction of the municipal court, not the jurisdiction of the circuit court. On appeal, Haas would have been able to challenge the circuit court's decision that the municipal court had jurisdiction to issue the commitments. This issue would have been a proper one for appeal, and we will not grant an extraordinary writ when the petitioner voluntarily relinquished what was an otherwise adequate and available remedy.

¶ 19. Finally, we note that we occasionally have exercised our discretion to grant a writ after a petitioner had failed to exercise other adequate remedies. However, we have only done so under exceptional circumstances. See, e.g., Fuentes, 225 Wis. 2d at 453 (granting a writ of habeas corpus when a clerical error by the court deprived the defendant of his ability to petition this court for review). Here, Haas has shown no such exceptional circumstances that would require us to issue the writ. Because Haas voluntarily dismissed his own direct appeal, he may not seek the same remedy he could have sought in that appeal through extraordinary means.

I — I l — I HH

¶ 20. Because we find that Haas had an adequate, alternative remedy to challenge the denial of his first writ of habeas corpus, he was not entitled to a separate writ. We are therefore not required to address the issues of custody, successive writs, or the jurisdiction of the municipal court. The court of appeals properly denied Haas's petition, and we affirm the decision of the court of appeals.

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

       The commitment orders were titled "Contempt of Court— Commitment Upon Sentence." The county asserts that the titles were merely administrative and that the commitment orders were not truly for "contempt." However, the actual nature of the commitments is irrelevant to our analysis because we do not reach the question of the municipal court's jurisdiction.

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


author: PER CURIAM.

text:
    James Servais, Douglas Pierce, William R. Dobson, Roger Noll, Rita Noll, Byron Krueger, Melvin Schmitz, and Roger Swanson, Plaintiffs-Appellants-Petitioners, v. Kraft Foods, Inc., National Cheese Exchange, Inc., and Alpine Lace Brands, Inc., Defendants-Respondents. William R. Dobson, Plaintiff-Appellant-Petitioner, v. Kraft Foods, Inc., and National Cheese Exchange, Inc., Defendants-Respondents. Roger Noll, Rita Noll, Byron Krueger, Melvin Schmitz, and Roger W. Swanson, Plaintiffs-Appellants-Petitioners, v. Kraft Foods, Inc., National Cheese Exchange, Inc., Borden, Inc., and Alpine Lace Brands, Inc., Defendants-Respondents.
    Supreme Court

      No. 99-3199.

      Oral argument March 5, 2002.

    Decided April 30, 2002.

    2002 WI 42
    (Also reported in 643 N.W.2d 92.)

      For the plaintiffs-appellants-petitioners there were briefs by Michael L. Stoker and Johns & Flaherty, S.C., La Crosse, and oral argument by Thomas Dubbs.

    For the defendants-respondents there were briefs by Ralph V. Topinka and Quarles & Brady, LLP, Madison; Tefft W. Smith, J. Robert Robertson, Nathaniel M. Cousins, Catherine Fazio and Kirkland & Ellis, Chicago, Illinois; Theodore L. Banks, Seth A. Eisner and Kraft Foods, Inc., Northfield, Illinois; Michael Fischer, G. Michael Halfenger and Foley & Ldrdner, Milwaukee; Howard A. Pollack and Godfrey & Kahn, S.C., Milwaukee; Thomas F. Ryan, Bruce M. Zessar, Gabriel Aizen-berg and Sidley Austin Brown & Wood, Chicago, Illinois; Colleen K. Nissl and Borden, Inc., Columbus, Ohio; Scott W. Hansen, Christopher Banaszak and Re-inhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee; and oral argument by Tefft W. Smith.

    An amicus curiae brief was filed by Kevin J. O'Connor, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
    An amicus curiae brief was filed by James A. Buchen on behalf of Wisconsin Manufacturers & Commerce, and William F. White and Michael Best & Friedrich, LLP, Madison, on behalf of the Wisconsin Utilities Association, Inc.
   PER CURIAM.

¶ 1. This is a review of a published decision of the court of appeals, Servais v. Kraft Foods, 2001 WI App 165, 246 Wis. 2d 920, 631 N.W.2d 629, that affirmed a judgment of the Circuit Court for Dane County, E Charles Jones, Judge. The court is equally divided on the question of whether the decision of the court of appeals should be affirmed or reversed.

Justices N. PATRICK CROOKS, DAVID T. PROSSER, and DIANE S. SYKES would affirm; Chief Justice SHIRLEY S. ABRAHAMSON and Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY would reverse. Justice JON P WILCOX did not participate. Accordingly, the decision of the court of appeals is affirmed.


author: NETTESHEIM, EJ.

text:
    American Manufacturers Mutual Insurance Company and Walgreen Company, Plaintiffs-Appellants, v. Ann Hernandez and Labor & Industry Review Commission, Defendants-Respondents.
    Court of Appeals

      No. 01-1519.

      Submitted on briefs January 10, 2002.

    Decided February 13, 2002.

    2002 WI App 76
    (Also reported in 642 N.W.2d 584.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Cori Lynn Prahl and Michelle M. Stoeck of Hills Legal Group, LTD., of Waukesha.
    On behalf of the defendant-respondent, Ann Hernandez, the cause was submitted on the brief of Kelin R. Olson, Sr. of Daniel P. Rondos, S. C., Law Offices of Milwaukee. On behalf of the defendant-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of James E. Doyle, attorney general, and Jerome S. Schmidt, assistant attorney general.
    Before Nettesheim, EJ., Brown and Snyder, JJ.
   NETTESHEIM, EJ.

¶ 1. Walgreen Company and its insurer, American Manufacturers Mutual Insurance Company (hereinafter referred to together as American) appeal from a circuit court order affirming a decision of the Labor and Industry Review Commission (LIRC). LIRC found that Ann Hernandez, a Walgreens' employee, suffered injuries compensable under the worker's compensation statutes. Hernandez's injuries at issue in this appeal were the result of an automobile accident that occurred while she was en route to her physician's office for a final examination of an earlier undisputed work-related injury. LIRC determined that at the time of the accident, Hernandez was performing a service growing out of and incidental to her employment pursuant to Wis. Stat. § 102.03(l)(c) (1999-2000) and that the accident causing the injury arose out of her employment at Walgreens pursuant to § 102.03(l)(e).

¶ 2. We conclude that LIRC's decision is entitled to due weight deference on appeal. We further conclude that LIRC's interpretation of the statute in question, Wis. Stat. § 102.03(l)(c)l and (l)(e), is reasonable, absent a more reasonable interpretation. We therefore uphold LIRC's decision and affirm the trial court's order.

BACKGROUND

¶ 3. The facts pertaining to this appeal as found by LIRC are as follows. Hernandez suffered a conceded work injury while working at Walgreens on November 14, 1997, when a door closed on her right thumb. She was treated by Dr. Andreas Doermann until February 9, 1998, at which time Dr. Doermann informed Hernandez that the healing was going well. Hernandez did not believe that' she needed to return to see Dr. Doermann. However, in April or May of 1998, Hernandez received a message from Dr. Doermann's office informing her that Walgreens' worker's compensation insurer wanted him to perform a final evaluation of her injury. Hernandez scheduled an appointment for July 14, 1998.

¶ 4. On the day of the scheduled appointment, Hernandez worked at Walgreens. She then went home and changed clothes in preparation for the appointment. On the way to her appointment, Hernandez was involved in an automobile accident and sustained serious injuries.

¶ 5. Hernandez filed a hearing application on November 15, 1999, seeking temporary total disability compensation from July 14, 1998, to the date of filing. On December 29, 1999, American filed a response, contending that Hernandez's injuries were not covered by the worker's compensation law.

¶ 6. A hearing was held before an administrative law judge (ALJ) on February 16, 2000. On April 17, 2000, the ALJ issued a written decision finding that Hernandez's July 14, 1998 injury was a "direct and natural result" of her prior compensable November 14, 1997 injury and was "compensable based on the November 14, 1997 injury."

¶ 7. American subsequently petitioned for LIRC review of the ALJ's findings and interlocutory order. In its brief in support of its petition, American conceded that it had requested a final evaluation but argued that Walgreens had not required that Hernandez attend the appointment. Hence, American challenged the ALJ's decision that Hernandez's injury was compensable under Wis. Stat. § 102.03(l)(e). In its decision, LIRC set aside the ALJ's findings but affirmed its ultimate decision regarding compensability.

¶ 8. American appealed LIRC's decision to the circuit court. On April 7, 2001, the circuit court issued a written decision upholding LIRC's determination. Affording great weight deference to LIRC's decision, the court stated, "LIRC's findings of fact are supported by substantial and credible evidence, and ... its interpretation of Wis. Stat. § 102.03 is reasonable." The circuit court entered its order affirming LIRC's decision on May 1, 2001.

¶ 9. American appeals.

DISCUSSION

Standard of Review

¶ 10. As a threshold issue, we address the parties' arguments as to the appropriate standard of review to be applied to LIRC's determination. Not surprisingly, American argues that LIRC's determination is not entitled to great weight deference, but rather is subject to de novo review. Hernandez argues that we should afford, at a minimum, due deference to the LIRC ruling. We conclude that due deference is appropriate in this case.

¶ 11. In an appeal following an administrative agency decision, we review the decision of the agency, not that of the circuit court. Zignego Co. v. DOR, 211 Wis. 2d 819, 824, 565 N.W.2d 590 (Ct. App. 1997). We do not weigh the evidence or pass upon the credibility of the witnesses, and we will uphold LIRC's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App. 1996); Wis. Stat. § 102.23(6). When we review an administrative agency's interpretation of a statute, there are three possible levels of deference: great weight, due weight or de novo. Secor v. LIRC, 2000 WI App 11, ¶¶ 9-10 n.1, 232 Wis. 2d 519, 606 N.W.2d 175.

¶ 12. When we afford "great weight" deference to the agency's interpretation, we will sustain a reasonable agency conclusion even if an alternative conclusion is more reasonable. Zignego, 211 Wis. 2d at 823. We give "great weight" deference to the agency's interpretation when all of the following conditions are met: (1) the agency was charged by the legislature with the duty of administering the statute, (2) the interpretation of the agency is one of long-standing, (3) the agency employed its expertise or specialized knowledge in forming the interpretation, and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Id.

¶ 13. In affording "due weight" deference to the agency's interpretation, we will not overturn a reasonable agency decision that comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available. Id. at 823-24. We afford "due weight" deference to the agency's determination when it has some experience in an area, but has not developed the expertise that necessarily places it in a better position than a court to make judgments regarding the interpretation of the statute. Id. at 823.

¶ 14. When we review an agency decision "de novo," we give no deference to the agency's interpretation. See Brauneis v. State, 2000 WI 69, ¶ 18, 236 Wis. 2d 27, 612 N.W.2d 635. De novo review is appropriate if any of the following is true: (1) the issue before the agency is clearly one of first impression, (2) a legal question is presented and there is no evidence of any special agency expertise or experience, or (3) the agency's position on an issue has been so inconsistent that it provides no real guidance. Id.

¶ 15. American concedes that LIRC has had experience interpreting worker's compensation laws and even the particular language of Wis. Stat. § 102.03(l)(c)l and (l)(e). However, American argues that de novo review is appropriate because LIRC has never been faced with the precise issue in this case— whether an employee was performing services related to the employment when involved in an accident on the way to a medical appointment relating to the status of a prior compensable work injury. However, the commission need not have decided a case with identical or similar facts in order for its decision to be given great weight deference. Honthaners Rests., Inc. v. LIRC, 2000 WI App 273, ¶ 12, 240 Wis. 2d 234, 621 N.W.2d 660. If that is the law as to "great deference," it surely is the law as to "due deference."

¶ 16. In applying deference to LIRC's determination, the correct test under Wisconsin law is whether LIRC has experience in interpreting a particular statutory scheme, not whether it has ruled on precise, or even substantially similar, facts before. Id. American concedes that LIRC has experience interpreting the applicable statutes; we reject its contention that de novo review is appropriate in this case due to the facts presented.

¶ 17. Instead, we are satisfied that due deference is1 appropriate. The issue presented is one of first impression. Although LIRC has experience interpreting the statutes in question, the legal question presented is neyertheless novel and LIRC has not developed an expertise as to the "second injury" issue presented in this case. Applying due deference, we will not overturn LIRC's decision if it is reasonable and comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available. Zignego, 211 Wis. 2d at 823-24.

The Application of Wis. Stat. § 102.03(l)(c)l and (l)(e)

¶ 18. The parties agree that whether Hernandez is entitled to compensation for her July 14 injury turns on the application of Wis. Stat. § 102.03(1)(c)l and (l)(e). The relevant provisions of § 102.03 which govern the conditions of liability for worker's compensation provide as follows:

(1) Liability under this chapter shall exist against an employer only where the following conditions concur:
(c)l. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.
(e) Where the accident or disease causing injury arises out of the employee's employment.

Applying § 102.03(l)(c)l and (l)(e) to the facts of this case, LIRC determined that Hernandez was entitled to benefits. LIRC set forth its reasoning in its written decision:

It was an obligation of the applicant's employment, as well as the circumstances of that employment which caused the applicant to be in her car and on her way to see Dr. Doermann when she was injured by an outside force on July 14, 1998. The applicant had no intention of returning to Dr. Doermann for additional treatment or evaluation relative to her work injury of November 14, 1997. However, the employer's worker's compensation insurer requested a medical evaluation from Dr. Doermann, which was the reason for the applicant's trip to his office on July 14, 1998. It is a reasonable inference from these facts that the applicant was obligated to return to Dr. Doermann as a duty incidental to her employment. She was aware of the insurance relationship between the employer and its worker's compensation insurer, and of the fact that the requested evaluation was needed to satisfy the employer's insurer. It was clearly the circumstance of the November 1997 work injury which led to the appointment with Dr. Doermann. Thus, the July 1998 injury arose out of the applicant's employment with the employer.

¶ 19. American challenges LIRC's decision, arguing that it misconstrues Wis. Stat. § 102.03(l)(c)l and (l)(e).

¶ 20. At the outset, we note that intertwined with American's argument on the above issues are challenges to LIRC's findings of fact. However, it is not our function on appeal to weigh the evidence or pass upon the credibility of the witnesses and we will uphold LIRC's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Langhus, 206 Wis. 2d at 501; Wis. Stat. § 102.23(6). We will only set aside an agency's decision where, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶ 10, 240 Wis. 2d 209, 621 N.W.2d 633, review denied, 2001 WI 15, 241 Wis. 2d 210, 626 N.W.2d 808 (Wis. Feb. 7, 2001) (No. 99-2632).

¶ 21. Specifically, American contends "there is no evidence that either American Manufacturers or Wal-greens required the final evaluation." However, the transcript from the ALJ hearing reflects Hernandez's testimony that Dr. Doermann had informed her that the final assessment was at the request of Walgreens' worker's compensation insurer and that had she not received that phone call, she would not have gone back to Dr. Doermann for any reason. When there is credible evidence in the record to support LIRC's findings of fact and resulting inferences, as there is here, we will uphold them. See id.

¶ 22. That said, we turn to American's contention that LIRC's decision misconstrued Wis. Stat. § 102.03(l)(c)l and (l)(e). With respect to § 102.03(l)(c)l, American argues that the evaluation was not a duty of Hernandez's employment, nor was it required by worker's compensation laws. In so arguing, American relies upon evidence that was not presented and facts not found by LIRC (i.e., Walgreens did not have any input or control over the evaluation and whether Hernandez sought the final evaluation would not have impacted her employment at Walgreens). In fact, American's argument depends in large part on our acceptance of its assertion that neither American nor Walgreens required the final evaluation. Again, this runs contrary to LIRC's finding based on Hernandez's testimony that American requested Hernandez's final evaluation with Dr. Doermann.

¶ 23. Wisconsin Stat. § 102.03(l)(c)l contains the phrase "performing service growing out of and incidental to his or her employment" which refers to the "time, place and circumstances" under which the injury occurred. Weiss v. City of Milwaukee, 208 Wis. 2d 95, 104-05, 559 N.W.2d 588 (1997) (citation omitted). It includes activity that is reasonably required by the terms and conditions of the employment. Employers Mut. Liab. Ins. Co. v. DILHR, 52 Wis. 2d 515, 521, 190 N.W.2d 907 (1971).

¶ 24. LIRC found that Hernandez would not have been in her vehicle on July 14 were it not for the request of American, acting as Walgreens' worker's compensation insurer, that Dr. Doermann schedule a final assessment with her. Having found that Hernandez responded to this request, LIRC's inference and determination that Hernandez's trip to the doctor was required by the terms of her employment is eminently reasonable.

¶ 25. American additionally contends that Hernandez's injury did not "arise out of' her employment at Walgreens and therefore Wis. Stat. § 102.03(l)(e) does not apply. The phrase "arising out of' employment refers to the causal origin of the injury. Ide v. LIRC, 224 Wis. 2d 159, 171-72, 589 N.W.2d 363 (1999). In interpreting § 102.03(1)(e), Wisconsin courts apply the "positional risk" doctrine, which provides as follows:

[A]ll that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose. In other words, there is a causal connection between the employment and the injury where the employee is obligated by his employment to be present at the place where he encounters injury through the instrumentality of a third person or an outside force.

Ide, 224 Wis. 2d at 172 (citations omitted).

¶ 26. Here, LIRC found that American requested that Hernandez schedule an appointment with Dr. Doermann and that Hernandez would not have done so absent that request. The record supports those findings. Based on its findings, LIRC drew the reasonable inference that were it not due to an obligation of her employment at Walgreens, Hernandez would not have returned to Dr. Doermann's office for an appointment and would not have suffered additional injury. As such, LIRC reasonably determined that Hernandez's additional injuries are compensable pursuant to Wis. Stat. § 102.03(l)(e).

CONCLUSION

¶ 27. We conclude that LIRC's determination that Hernandez's injuries are compensable pursuant to Wis. Stat. § 102.03(l)(c)l and (l)(e) is the most reasonable under the facts of this case. Absent a more reasonable interpretation, we must uphold LIRC's determination. Zignego, 211 Wis. 2d at 823-24. We therefore affirm the trial court's order.

By the Court. — Order affirmed.

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

       American also disputed the nature and extent of Hernandez's claimed disability.

       In arguing against a "great weight" standard of review, American challenges the circuit court's reliance on CBS, Inc. v. LIRC, 219 Wis. 2d 564, 579 N.W.2d 668 (1998), in applying that standard. We agree with American that this case is not comparable to CBS. But that does not require that we reverse because we review LIRC's determination, not that of the circuit court.

       We note'that American additionally argues that LIRC's decision is contrary to Wisconsin law. In support of its argument, American cites to two Wisconsin cases, Western Lime & Cement Co. v. Industrial Commission, 194 Wis. 606, 217 N.W. 303 (1928), and Burton v. DILHR, 43 Wis. 2d 218, 168 N.W.2d 196, modified, 43 Wis. 2d 218, 170 N.W.2d 695 (1969). However, American offers no specific citation from these cases and does not develop its argument as to their application to the case at bar. Nevertheless, we have reviewed these cases and reject American's argument that LIRC's decision runs contrary to their holdings.

       Although not evidence, we note that in its brief in support of its petition for LIRC review, American acknowledged that it had requested a final evaluation. The further proceedings before LIRC did nothing to dispel this representation. We conclude that LIRC was entitled to rely on this representation.

       In further support of her argument, Hernandez relies on the general rule of compensation followed in a majority of jurisdictions. In considering specifically whether an accident arose out of an individual's employment, the general rule provides for compensation "[w]hen an employee suffers additional injuries because of an accident in the course of a journey to a doctor's office occasioned by a compensable injury." 1 ARTHUR LARSON & LEX K. LARSON, IiARSON's WORKERS1 COMPENSATION Law § 10.07 (2001). "[A] fall or automobile accident during a trip to the doctor's office has usually been considered sufficiently causally related to the employment by the mere fact that a work-connected injury was the cause of the journey, without any necessity for showing that the first injury in some way contributed to the fall or accident." Id. Stated differently, but to the same effect, Hernandez's additional injuries would be compensable under this rule without further linkage to her initial injury.
      However, we need not go the lengths of the majority rule to sustain the LIRC determination. Here, LIRC has determined that Hernandez's additional injury was occasioned by American's request for a final evaluation of Herdandez's injury. Although there may be little semantic difference between American's request for the further evaluation and Hernandez's prior compensable injury as the cause of the later injuries, it remains that LIRC factually determined that American's request caused the subsequent injury. Apart from the general rule, this finding supports LIRC's conclusion that Hernandez satisfied the requirements of Wis. Stat. § 102.03(l)(c)l and (l)(e).


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Prentiss M. McKinnie, Defendant-Petitioner.

    Court of Appeals

      No. 01-2764-CR.

      Submitted on briefs January 25, 2002.

      Decided February 13, 2002.

    2002 WI App 82
    (Also reported in 642 N.W.2d 617.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Bryan J. Borman, assistant state public defender of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ, Brown and Anderson, JJ.

       Petition to review denied 7-26-02.

   ANDERSON, J.

¶ 1. This is a petition for leave to appeal. Prentiss M. McKinnie appeals a nonfinal order of the trial court denying his motion to bar his prosecution on double jeopardy grounds. Because we agree with the trial court that prosecution of McKinnie does not violate the constitutional protection against double jeopardy, we affirm.

¶ 2. On May 21, 2001, at approximately 9:04 p.m., Brookfield police officers were dispatched to the north parking lot of Brookfield Square Mall on information that a carjacking had just occurred. The next day, the City of Brookfield Police Department received a phone call from the City of Milwaukee Police Department indicating that the vehicle that was stolen the day before in the carjacking from the Brookfield Square parking lot had now been involved in a high-speed chase with Milwaukee police officers and a male driver had been taken into custody and identified as McKin-nie.

¶ 3. McKinnie was charged in both Waukesha and Milwaukee counties. The Waukesha county charge alleged that on May 21, 2001, McKinnie did, while possessing a dangerous weapon (a long, metal-pronged hair combing device), by threat of use of force against another, intentionally take a vehicle without the consent of the owner, Shirley Katt, contrary to Wis. Stat. § 943.23(lg) (1999-2000) (carjacking). The Milwaukee county charge alleged that on May 22, 2001, at approximately 9:30 a.m., at the location of 3079 North 24th Place, in the city of Milwaukee, McKinnie operated an automobile without the owner's consent contrary to § 943.23(3) (OAWOC). On October 4, 2001, McKin-nie pled guilty to the Milwaukee county charge.

¶ 4. On October 11, 2001, McKinnie sought dismissal of the Waukesha county carjacking charge because he had already been convicted of the lesser-included offense of OAWOC in Milwaukee county. He argued thatWis. Stat. § 939.66(2r) bars the subsequent prosecution in Waukesha county for the greater offense of carjacking. On October 15, 2001, the Waukesha county trial court denied McKinnie's motion to dismiss. On October 16, 2001, McKinnie filed a petition for leave to appeal the Waukesha county trial court's denial of his double jeopardy motion. In order to facilitate our review of the petition for leave to appeal, we stayed the trial court's proceedings and ordered transmittal of the record and the filing of briefs.

¶ 5. On appeal, McKinnie renews the argument that Wis. Stat. § 939.66(2r) bars the subsequent prosecution in Waukesha county for the greater offense of carjacking. Section 939.66(2r) states in relevant part:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, hut not both. An included crime may be any of the following:
(2r) A crime which is a less serious type of violation under s. 943.23 than the one charged.

¶ 6. McKinnie is correct in his statement of the law. Multiple punishments for the same offense violate the double jeopardy protections of the state and federal constitutions and of Wis. Stat. § 939.66(2r). State v. Koller, 2001 WI App 253, ¶ 28, 248 Wis. 2d 259, 635 N.W.2d 838, review denied, 2002 WI 2, 249 Wis. 2d 580, 638 N.W.2d 589 (Wis. Nov. 27, 2001) (No. 99-3084-CR); § 939.66(2r). However, because we hold that McKinnie engaged in separate, distinct criminal acts, neither constitutional nor statutory double jeopardy bars apply to the case at hand.

¶ 7. Wisconsin has recognized principles for determining when a defendant's acts are sufficiently different in fact to warrant multiple charges under a single statute. Those principles were recently described in Koller, 2001 WI App 253 at ¶ 31:

[Determining whether acts are sufficiently different in fact to warrant multiple charges] involves a determination of whether the charged acts are "separated in time or are of a significantly different nature." The "different nature" inquiry is not limited to an assessment of whether the acts are different types of acts. Rather, even the same types of acts are different in nature "if each requires 'a new volitional departure in the defendant's course of conduct.'" Furthermore, time is an important factor, but even a brief time separating acts may be sufficient.... The pertinent time question is whether the facts indicate the defendant had "sufficient time for reflection between the [acts] to again commit himself." (Citations omitted.)

¶ 8. The above-mentioned principles have been applied to several different types of prosecutions. See City of Madison v. Nickel, 66 Wis. 2d 71, 223 N.W.2d 865 (1974) (charging a defendant with four violations of a city ordinance prohibiting the selling of obscene magazines is not multiplicitous even though the magazines were sold by the defendant at the same time and place to the same person); see also State v. Anderson, 219 Wis. 2d 739, 580 N.W.2d 329 (1998) (conviction on two counts of bail jumping is not multiplicitous when each is based on a violation of a different term of defendant's bond for the underlying crime).

¶ 9. Thus, these principles are not limited to one type of prosecution, even though they have most often been applied in sexual assault prosecutions. We choose to discuss one such case as a point of reference for our decision. In the case of Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (Ct. App. 1979), the defendant pointed a gun at the victim as she unlocked the lobby door to the apartment building in which she lived and he ordered her to walk to the basement. Id. at 553. While pointing the gun at her head, he ordered her to remove her clothing. Id. After she complied, he told her to remain quiet or he would blow her head off. Id. He demanded money and received three dollars from the victim. Id. He then, without the victim's consent, had sexual intercourse with her. Id. After the act of sexual intercourse, and while threatening to blow her head off, he searched her clothing for more money. Id. After twenty to twenty-five minutes of conversation, he completed a second act of sexual intercourse without the victim's consent with the gun at all times pointed at the victim's head. Id.

¶ 10. The defendant was convicted of two counts of rape and one count of armed robbery. Id. During trial, the trial court denied the defendant's motion to dismiss one of the counts of rape. Id. The defendant's postconviction motion was also denied. Id. On appeal, the defendant contended that the two acts of sexual intercourse, each charged as a rape, amounted to a continuous crime, a unitary transaction. Id. He argued that charging each act of sexual intercourse as a rape divides a single course of conduct into multiple counts of the same criminal offense and therefore violates the double jeopardy provisions of the federal and state constitutions. Id. at 553-54. He claimed that the multiplicity existed because the sexual intercourse was without the consent of the victim by use or threat of force and that all incidents occurred with the same person and on the same occasion within a period of approximately one-half hour. Id. at 564. The court held that the separate acts of sexual assault were separately punishable. Id. We find the rationale in Harrell instructive.

¶ 11. The principles described in Roller, having been applied in Harrell and several types of prosecutions in which multiple convictions were affirmed, are applicable to this case and require the holding of this court that, on the alleged facts before us, McKinnie was properly charged with separate crimes. On May 21, 2001, at approximately 9:04 p.m., in the north parking lot of Brookfield Square Mall, in Waukesha county, McKinnie, allegedly armed with a dangerous weapon, by threat of use of force decided to steal a car out from under its driver, Shirley Katt; on the next day, at approximately 9:30 a.m., in Milwaukee county, McKin-nie, after sufficient time for reflection, again committed himself to driving a stolen car. Each act required "a new volitional departure in [McKinnie's] course of conduct." See Koller, 2001 WI App 253 at ¶ 31. As alleged, McKinnie's offenses are separate and distinct and may be separately charged.

By the Court. — Order affirmed.

       We grant the petition.

       Wisconsin Stat. § 943.23(lg) provides:
      Whoever, while possessing a dangerous weapon and by the use of, or the threat of the use of, force or the weapon against another, intentionally takes any vehicle without the consent of the owner is guilty of a Class B felony.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 943.23(3) provides:
      Whoever intentionally drives or operates any vehicle without the consent of the owner is guilty of a Class E felony.

       Both the Waukesha county complaint and the Milwaukee county complaint contained additional charges unrelated to this appeal.


author: LUNDSTEN, J.

text:
    In re the Termination of Parental Rights to Deantye P.-B., a Person Under the Age of 18: La Crosse County Department of Human Services, Petitioner-Respondent, v. Tara P., Respondent-Appellant. [Case No. 01-3034] In re the Termination of Parental Rights to Tyrell P.-B., a Person Under the Age of 18: La Crosse County Department of Human Services, Petitioner-Respondent, v. Tara P., Respondent-Appellant. [Case No. 01-3035]
    Court of Appeals

      Nos. 01-3034, 01-3035.

      Submitted on briefs January 17, 2002.

    Decided February 14, 2002.

    2002 WI App 84
    (Also reported in 643 N.W.2d 194.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Tim Provis, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of David L. Lange, Deputy Corporation Counsel for La Crosse County.
    On behalf of Deantye P-B. and Tyrell P-B., the cause was submitted on the brief of Janet A. Jenkins, guardian ad litem, of Johns & Flaherty, S.C., La Crosse.
    Before Dykman, Deininger and Lundsten, JJ.

       Petition to review denied 4-22-02.

   LUNDSTEN, J.

¶ 1. Tara P appeals two orders of the circuit court terminating her parental rights to two other children. Tara E alleges that the circuit court erred at her termination of parental rights trial by allowing admission of evidence pertaining to events that occurred prior to the CHIPS dispositional orders. For the reasons that follow, we affirm.

Background

¶ 2. In April of 1998, Tara E's children were removed and held in emergency foster care on the basis that Tara "neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health" of her children. See Wis. Stat. § 48.13(10). Two weeks later, the La Crosse County Human Services Department filed two petitions for protection or services on behalf of the children. Approximately ten weeks after that, the circuit court issued two CHIPS dispositional orders regarding Tara E's two children, one order for each child, finding both in need of protection or services. The orders set forth thirteen conditions the court believed were necessary for the safe return of the children to Tara E's home. The CHIPS dispositional orders were extended for a year in June of 1999 and for another year in June of 2000.

¶ 3. In November of 2000, La Crosse County petitioned to terminate Tara E’s parental rights, alleging that the children were in continuing need of protection or services pursuant to Wis. Stat. § 48.415(2). Prior to the termination trial, Tara E filed a motion in limine seeking to prohibit La Crosse County and the guardian ad litem from introducing evidence concerning matters occurring prior to the June 1998 CHIPS dispositional orders. The circuit court denied the motion. Specifically, the court ruled that evidence of facts referred to in the original petitions would be admissible, but it would consider objections to evidence relating to other events prior to the CHIPS dispositional orders.

¶ 4. At trial, La Crosse County presented evidence that the county made reasonable efforts to provide services ordered by the court, that Tara E failed to meet all thirteen conditions for the safe return of her children, and that Tara E was unlikely to meet these conditions in the following twelve-month period. The evidence included information relating to Tara P's parenting and certain actions taken by the County prior to the dispositional orders.

¶ 5. The jury found in favor of La Crosse County, and the circuit court entered orders terminating Tara P's parental rights to the two children.

Discussion

¶ 6. The alleged error in this case involves the admission of evidence at a termination of parental rights trial regarding events that occurred prior to the CHIPS dispositional orders. We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard. See Morden v. Continental AG, 2000 WI 51, ¶ 81, 235 Wis. 2d 325, 611 N.W.2d 659. We will not upset a circuit court's decision to admit or exclude evidence if the decision has " 'a reasonable basis' and was made 'in accordance with accepted legal standards and in accordance with the facts of record.'" Lievrouw v. Roth, 157 Wis. 2d 332, 348, 459 N.W.2d 850 (Ct. App. 1990) (citations omitted).

¶ 7. Tara E asserts that the circuit court's decision to deny her motion in limine to exclude evidence of events occurring prior to the CHIPS dispositional orders runs afoul of our holding in S.D.S. v. Rock County Department of Social Services, 152 Wis. 2d 345, 448 N.W.2d 282 (Ct. App. 1989). We disagree.

¶ 8. At Tara E's termination trial, the following four elements were at issue:

(1) Whether "the child has been adjudged to be a child or an unborn child in need of protection or services and placed, or continued in a placement, outside his or her home" for a cumulative total period of six months or longer pursuant to one or more court orders under one of the enumerated statutory sections;
(2) Whether "the agency responsible for the care of the child and the family. . . has made a reasonable effort to provide the services ordered by the court";
(3) Whether "the parent has failed to meet the conditions established for the safe return of the child to the home"; and
(4) Whether "there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following" the termination fact-finding hearing.

Wxs. Stat. § 48.415(2)(a)2.b and 3; see also Wis JI— Children 324. The first of these elements was determined by the circuit court and the remaining three were determined by the jury.

¶ 9. Tara E argues that a footnote in S.D.S. effectively holds that facts relating to a CHIPS dispositional proceeding under Wis. Stat. § 48.13(10) are not relevant to the elements determined by the jury at the termination proceeding. Tara E focuses on the following language we have italicized in footnote 11 in S.D.S.:

Our reversal of the pretrial order includes the findings of fact made at the fact-finding hearing in the CHIPS jurisdictional proceeding which the disposi-tional order incorporates. The facts established at the fact-finding hearing in a CHIPS proceeding under sec. 48.13(10), Stats., that the parent has neglected, refused, or been unable for reasons other than poverty to provide the child with necessary care so as to seriously endanger the physical health of the child, is not an element of or relevant to termination under sec. 48.415(2)(c). The pertinent element for termination is that "the parent has substantially neglected, wilfully refused or been unable to meet the conditions established for the return of the child to the home." Those conditions are established in the dispositional hearing in a CHIPS proceeding, not at the preceding fact-finding hearing. The burden is on the petitioner in a termination proceeding to establish by clear and convincing evidence that the parent has not met the conditions established for return of the child, not that the parent has neglected, refused, or been unable to provide the child with necessary care.

S.D.S., 152 Wis. 2d at 358 n.ll (emphasis added).

¶ 10. Rather than address the parties' debate regarding the meaning of footnote 11 in S.D.S., we resolve the dispute by holding that Tara E's interpretation of footnote 11, even if correct, constitutes dicta. Moreover, we agree with the circuit court in this case that the facts occurring prior to a CHIPS dispositional order are frequently relevant to the issues at a termination proceeding.

¶ 11. The text of S.D.S. relating to footnote 11 involves the topic of issue preclusion. We held there that the circuit court erred when it directed that findings supporting a CHIPS dispositional order must be accepted as true for purposes of a later termination proceeding. Id. at 355. We determined that issue preclusion should not be applied because of the "heavier burden of proof at the [later] factfinding hearing in the termination proceedings [compared with the earlier] CHIPS dispositional proceedings." Id. at 357. Accordingly, we held that the parents in S.D.S. had been wrongly denied an opportunity at the termination hearing to challenge earlier fact finding set forth in the CHIPS dispositional order. See id. at 357-58.

¶ 12. To the extent footnote 11 in S.D.S. can be read as suggesting that events preceding a CHIPS dispositional order are never relevant to a termination proceeding, such a reading is both dicta and plainly wrong. When the comments in the footnote are read as Tara P suggests, they are dicta because they were "broader than necessary to determine" the issue preclusion question before us in S.D.S. See State ex rel. Schultz v. Bruendl, 168 Wis. 2d 101, 112, 483 N.W.2d 238 (Ct. App. 1992). The statements in the footnote, as interpreted by Tara E, are wrong because events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding.

¶ 13. Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Wis. Stat. § 904.01. Among the elements La Crosse County was required to prove, by clear and convincing evidence, was that "there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following" the termination fact-finding proceeding. See Wis. Stat. § 48.415(2)(a)2.b and 3. It is readily apparent that a history of parental conduct may be relevant to predicting a parent's chances of complying with conditions in the future, despite failing to do so to date. The instant case exemplifies how historical information can be relevant on this topic.

¶ 14. Apart from determining whether Tara E, since the dispositional orders were entered, failed to (1) maintain a clean, adequately furnished home, (2) establish a stable living environment, and (3) maintain employment, the jury was also asked to determine whether it was substantially likely that Tara E would not meet these conditions in the next twelve-month period. La Crosse County presented evidence that Tara E, prior to the dispositional orders and while she had custody of her children, repeatedly failed to comply with requirements necessary to maintain public assistance benefits (benefits which would have provided money for housing and utilities) and repeatedly failed to keep appointments with Job Service, an employment training program. Tara E's long history of failing to take advantage of state-offered mechanisms to obtain housing and employment training, considered in conjunction with her current failure to meet the stable housing and employment conditions, is evidence tending to show that Tara E is unlikely to meet these conditions in the future.

¶ 15. At the pretrial hearing on Tara E's motion in limine to exclude evidence of events occurring before the CHIPS dispositional orders, the circuit court correctly anticipated that evidence of events prior to the dispositional orders would be relevant to questions the jury would need to decide. Tara E did not renew her objection at trial, either generally or with respect to specific evidence. We have reviewed the record and conclude that any such effort would have been futile in light of the obvious relevance of the evidence.

¶ 16. Therefore, we conclude that the circuit court made its ruling "in accordance with accepted legal standards and in accordance with the facts of record" by considering the relationship of the evidence at issue to the elements to be proven by La Crosse County in the termination proceeding. See Lievrouw, 157 Wis. 2d at 348.

¶ 17. Tara E makes an alternative argument. Citing State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), a case concerning the admissibility of other acts evidence under Wis. Stat. § 904.04(2), she argues that "[t]he bad condition of the home and the children and [her] seeming indifference to it... is evidence from which the jurors could conclude [she] has a character trait for neglect, i.e., she is a bad mother." This evidence, she argues, was inadmissible other acts evidence. We agree with Tara E that this evidence was both offered as and used to show her character and propensity to be an unfit parent and the corresponding low likelihood that she would comply with conditions during the ensuing twelve-month period. We disagree that it was inadmissible under § 904.04(2).

¶ 18. The other acts evidence statute is directed at preventing fact finders from unnecessary exposure to character and propensity evidence in the context of determining whether a party committed an alleged act. See State v. Benoit, 229 Wis. 2d 630, 639, 600 N.W.2d 193 (Ct. App. 1999). Exposure in this context endangers the longstanding principle that persons should be found liable based on evidence of the particular alleged act, not based on bad character or propensity to commit the type of act alleged. That concern is not applicable here. In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a fact finder must necessarily consider the parent's relevant character traits and patterns of behavior, and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children.

¶ 19. Accordingly, we conclude that at the termination proceeding the circuit court properly denied Tara E's motion to exclude evidence of events that occurred prior to the CHIPS dispositional orders.

¶ 20. In closing, we stress that just as there is no blanket prohibition on evidence of events prior to a dispositional order, our present holding does not provide blanket authority for its admission. For example, evidence may be excluded on relevancy grounds in light of the particular facts of a case.

By the Court. — Orders affirmed.

       CHIPS is an acronym for "child in need of protection or services." See Wis. Stat. § 48.13 (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       This appeal was originally a one-judge appeal; it was converted to a three-judge panel by order of the Chief Judge of the Court of Appeals. See Wis. Stat. Rule 809.41(3).

       Wisconsin Stat. § 48.415 (1987-88) was renumbered subsequent to the S.D.S. decision. The language of subsection (2)(c) can now be found at § 48.415(2)(a)3 with few substantive changes.

       We note that events predating dispositional orders may also be relevant to another issue at termination proceedings: whether a county department of social services made "reasonable" efforts to provide services ordered by a court.

       Wisconsin Stat. § 904.04(2) provides as follows:
      OTHER CRIMES, WRONGS, OR ACTS. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.