author: CANE, C.J. HOOVER, EJ.

text:
    Lina M. Mueller, Plaintiff-Appellant, v. McMillian Warner Insurance Company and Merlin A. Switlick and Stephani Switlick, Defendants-Respondents, Apollo Switlick and Security Health Plan of Wisconsin, Inc., Defendants, Metropolitan Property and Casualty Insurance Company, Intervenor-Defendant.
    Court of Appeals

      No. 2005AP121.

      Submitted on briefs June 20, 2005.

      Decided August 2, 2005.

    2005 WI App 210
    (Also reported in 704 N.W.2d 613.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Carl L. Ricciardi of Carl L. Ricciardi Law Offices of Tomahawk.
    On behalf of the defendants-respondents, Merlin A. Switlick and Stephani Switlick, the cause was submitted on the brief of Paul E. David of Wendorff, Ellison & David, LLP of Wausau
    On behalf of the defendant-respondent, McMillan Warner Insurance Company, the cause was submitted on the brief of John A. Kramer and Michael J. Roman of Zalewski, Klinner & Kramer, LLP of Wausau.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 10-14-05.

   CANE, C.J.

¶ 1. Lina Mueller appeals a decision granting summary judgment to Merlin and Stephani Switlick in this personal injury case. Mueller also appeals a separate declaratory judgment that the Switlicks homeowner's policy with McMillan Warner Insurance Company did not provide coverage for the all-terrain vehicle (ATV) Mueller was riding when her accident occurred.

¶ 2. Mueller argues the trial court erred when it concluded she was not an injured third party for the purposes of Wis. Stat. § 125.035(4)(b), which establishes an exception to immunity from liability for those who furnish alcohol to underage drinkers. Mueller also argues the court erred when it determined that what the Switlicks did for her after her accident constituted "emergency care" under Wis. Stat. § 895.48(1), Wisconsin's Good Samaritan Law. Finally, Mueller argues that McMillan's policy provides coverage because the ATV involved in her accident was not "garaged" on the Switlicks' property.

¶ 3. We conclude that material questions of fact remain as to whether Mueller was a party to the transaction in which Merlin and Stephani provided alcohol to their nineteen-year old son, Apollo. We also conclude that Merlin and Stephani did not render "emergency care" to Mueller and are thus not immune from liability under Wis. Stat. § 895.48(1). Finally, we conclude that the ATV involved in Mueller's accident was not "garaged" on the Switlicks' property. The judgments are therefore reversed and the cause remanded for further proceedings consistent with this opinion.

BACKGROUND

¶ 4. In October 2003, Merlin and Stephani held a party for friends and business associates on property they owned in Lincoln County. The Switlicks used the property for a variety of recreational purposes, including hunting, and guests often spent the night at the family "shack," which had a number of bunkhouse style bedrooms.

¶ 5. According to Apollo's deposition testimony, he arrived at the party around 2 p.m. He drank what he described as a couple of twelve-ounce beers before 6 p.m. and a few more beers between 6 p.m. and 10 p.m. Sometime between 6 p.m. and 7 p.m., Mueller arrived at the party, went inside the shack with Apollo to play pool, and possibly to drink. The adult guests stayed outside the shack, near a pit where the Switlicks had built a bonfire.

¶ 6. At about 10 p.m., Apollo and Mueller joined the adults outside by the fire. Apollo testified that, once outside, he heard an ATV "puttering like it was running out of gas or was having a problem." Because Apollo knew his sister and her children had taken one of the family ATVs to check a field for deer, he thought that they might be in trouble. He noticed Randy Van Loh's ATV parked near the fire. He got on Van Loh's ATV and Mueller got on behind him. Neither wore a helmet. After checking on his sister, Apollo and Mueller headed back to the shack on a trail that was not on the family property.

¶ 7. During that return trip, the accident that gave rise to this lawsuit occurred. According to Apollo, he hit a stump or saw an overhanging branch, slammed on his brakes, and then remembered nothing until he and Mueller got back to the shack around 11 p.m. Both Apollo and Mueller were bleeding and vomiting. Al~ though the details of what happened next are in dispute, the basic sequence of events is not. Apollo and Mueller talked to Stephani and Merlin. Mueller went into the bathroom and wanted to lie down on the floor. Stephani eventually convinced Mueller to lie down in one of the bedrooms instead. Apollo also lay down in the same bed. Stephani testified that she woke Apollo and Mueller approximately every hour during the evening. In the morning, after Mueller responded to Stephani's questions by addressing her as "mom," Stephani called an ambulance. Mueller was taken to a hospital in Merrill where she was diagnosed with a skull fracture. She was then transported to a facility in Marshfield where she was hospitalized and treated.

¶ 8. In January 2004, Mueller sued Apollo for negligence, an action that is still before the trial court. Five months later, she filed an amended complaint alleging that Merlin and Stephani were negligent in providing alcohol to minors and in providing care for her after the accident. The trial court agreed to bifurcate coverage issues. In response, McMillan filed motions for summary judgment on the merits of the claims against Merlin and Stephani and on the coverage issues. After a hearing, the trial court issued a written decision concluding that Merlin and Stephani had provided traditional first aid to Mueller and were thus immune from liability under Wis. Stat. § 895.48(1); it also determined that Mueller had no cause of action under Wis. Stat. § 125.035(4) (b) because she "was one of the principals to the consumption of alcohol by underage persons." In a separate written decision, the court found that the McMillan homeowner's policy did not provide liability coverage for Mueller's accident because Van Loh’s ATV was "garaged” on the Switlicks' property. Mueller now appeals.

DISCUSSION

¶ 9. We review summary judgment decisions without deference, using the same methodology as the trial court. See Anderson v. American Fam. Mut. Ins. Co., 2003 WI 148, ¶ 9, 267 Wis. 2d 121, 671 N.W.2d 651. Summary judgment should be granted when no genuine issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The summary judgment questions in this case turn on the interpretation of two statutes creating immunity from civil liability. The proper interpretation of those statutes is also a question of law subject to de novo review. Czapinski v. St. Francis Hosp., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120.

Liability Exemption for Alcohol Providers and Exceptions to the Exemption

¶ 10. Under Wisconsin law, individuals are ordinarily immune from liability for injuries that arise from "procuring... selling, dispensing or giv[ing] away" alcoholic beverages to adults. Wisconsin Stat. § 125.035(4)(b) creates an exception to that general immunity for those who furnish alcohol to underage drinkers who are not "accompanied" by parents, guardians or spouses of legal age when that alcohol is a substantial factor in causing injury to a third party. Those who serve or otherwise supply alcohol to underage drinkers thus retain their immunity from liability if the underage drinker is "accompanied" by his or her parents. Liability is further limited by our supreme court's conclusion that principals to transactions that violate Wis. Stat. § 125.07(l)(a) are not third parties under § 125.035(4)(b). Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 17, 241 Wis. 2d 605, 623 N.W.2d 94.

¶ 11. Mueller argues that Merlin and Stephani are not protected "providers" because they were not "accompanying" Apollo when he drank the alcohol they procured for him. She also argues that the trial court erred when it concluded the Switlicks were immune from liability for any consequences arising from Apollo's consumption of alcohol because there are material questions of fact as to whether she was a party to any transaction with Merlin and Stephani. We will address Mueller's arguments in order.

¶ 12. The parties agree that Merlin and Stephani were not "providers" of alcohol if Apollo was "accompanied" by his parents when the alcohol in question was provided to him. The trial court concluded that "accompanied" entailed a degree of individualized supervision absent in this case. Merlin and Stephani contend it does not matter whether they were in the same room with Apollo when he was drinking. It was enough that he drank "in their proximity" and on the same premises, with their knowledge. McMillan agrees, arguing the trial court mistakenly imported the idea of individualized supervision from an opinion construing the word "accompanied" in a Milwaukee curfew ordinance. See City of Milwaukee v. K.F., 145 Wis. 2d 24, 37-38, 426 N.W.2d 329 (1988).

¶ 13. Although we agree that City of Milwaukee does not control the meaning of "accompanied" in Wis. Stat. § 125.07(1)(a), the supreme court's analysis of the curfew ordinance is instructive nevertheless. The ordinance prohibited children under the age of seventeen from being in public places after 11 p.m. unless "accompanied by his or her parents ... or other adult person having his or her care, custody or control." Milwaukee, Wis., Code op Ordinances § 106-23. City of Milwaukee, 145 Wis. 2d at 31. The supreme court observed that parents could have care, custody and control over children they brought to a dance without necessarily "accompanying" those children. Id. at 38. "Accompanying," the court concluded, required a degree of "individualized supervision" that mere presence might not satisfy. Id.

¶ 14. Mueller points to other statutes that allow children or juveniles to engage in otherwise prohibited activities when accompanied by adults. Children under twelve are allowed to operate snowmobiles, for example, if they are accompanied by an adult; in that statute, accompanied is defined as being on the same snowmobile. Wis. Stat. § 350.05(1) and (4). Similarly, children under twelve may operate ATVs if they are accompanied —defined as "subject to continuous verbal direction and control" — by an adult. Wis. Stat. § 23.33(l)(a) and (5)(a). Finally, children between twelve and fourteen years old are not allowed to hunt unless they are accompanied by an adult. Wis. Stat. § 29.304(2)(a). McMillan argues that the Milwaukee ordinance and these statutes are distinguishable in two ways from the statute we interpret here. First, they apply to younger children, not to older teens or adults. Second, accompany is defined in the other statutes, but not in Wis. Stat. § 125.07(l)(a). We are not persuaded.

¶ 15. The Milwaukee ordinance and the statutes Mueller cites share a basic presumption and serve similar public policies. Certain instrumentalities, such as hunting rifles, are dangerous enough that the people of Wisconsin ordinarily restrict their use or enjoyment to those with a certain level of maturity. But the legislature has determined that the risks associated with immature users can, in certain cases, be limited if those users are under adult control. Similarly, the legislature has decided that those under twenty-one cannot buy or consume alcohol legally because it is a dangerous instrumentality that most people under twenty-one are too immature to handle. To support that prohibition, the legislature has made those who provide underage drinkers with alcohol hable for third party injuries arising out of the prohibited transaction. The legislature has also determined, however, that providers are exempt from liability if the underage drinker is accompanied by a parent because that parent is presumed to be supervising the child's consumption of alcohol, minimizing the risks associated with underage drinking.

¶ 16. We therefore conclude that underage drin1~-ers are not accompanied by a parent merely because the parent and child are on the same premises. Merlin testified that he had told Apollo not to drink where he could be observed by the other guests and both Merlin and Stephani admitted they did not know how much their son drank between 2 p.m. and 10 p.m. Based on those undisputed facts, Merlin and Stephani were neither supervising nor otherwise controlling Apollo when he was drinking and were thus not accompanying him for the purposes of Wis. Stat. § 125.07(l)(a).

¶ 17. Mueller also argues the trial court erred when it granted summary judgment to Merlin and Stephani on the grounds that Mueller was not an injured third party under Wis. Stat. § 125.035(4)(b). We agree.

¶ 18. In a case involving underage drinkers in a bar, our supreme court concluded that "the transactional focus of [Wis. Stat.] § 125.035(4)(b) is the provision of alcohol to underage persons. The principal parties to such a transaction are: (1) providers and (2) underage drinkers." Meier, 241 Wis. 2d 605, ¶ 24. Based on the ordinary meaning of the term third party — one who is not a principal — the court reasoned that a provider could not also be a third party because he or she was a principal in the transaction at issue.

¶ 19. Although Meier dealt with an underage drinker who was also a provider, McMillan claims its holding controls this case. According to McMillan, Mueller's allegation that the Switlicks provided alcohol to her is sufficient to make her a principal to the transaction under Meier. Merlin and Stephani similarly contend that Mueller was a principal to the transaction because they claim that it is undisputed that she consumed alcohol with Apollo at the shack. Both arguments sidestep the real issue.

¶ 20. Several years after Meier, the supreme court returned to the third party issue in a different context. In Anderson, a mother bought her nineteen-year-old son a bottle of vodka and left it on the kitchen table with a note telling him that he owed her twelve dollars. Anderson, 267 Wis. 2d 121, ¶¶ 3, 6. Her son later took the vodka to the family's vacation home where he and underage friends drank it. Id., ¶ 6. One of the friends died of acute alcohol intoxication. Id. In considering whether the mother was immune from liability, the court made it clear that Meier did not stand for the proposition that underage consumers of alcohol were not automatically third parties. Anderson, 267 Wis. 2d 121, ¶¶ 29-30.

¶ 21. The court reiterated that only the principals to a transaction, the provider and the underage drinker, could not be third parties. But they found no evidence that the son's companions were present when the mother bought the alcohol, or that they paid for it, or that they requested she buy it. Id., ¶ 19. Under those circumstances, the son's friends were not principals in the transaction between son and mother. Id. Anderson concluded that "an underage drinker who is injured or dies as a result of the consumption of alcohol that was illegally provided to a companion underage drinker is an injured third party for the purposes of the exception to immunity." Id, ¶ 36.

¶ 22. Here, as in Anderson, there is no evidence Mueller asked Merlin or Stephani to procure alcohol for her and no evidence she paid them for it. See id., ¶ 19. Apollo testified that Mueller drank several beers, but said nothing about where she got them. Neither Merlin nor Stephani saw Mueller drink and there is no evidence about how, if she did drink, she obtained alcohol. We thus conclude that summary judgment was improper because there is a material question of fact as to whether Mueller was a principal to the transaction between Apollo and his parents or whether she was an underage drinker injured as a result of alcohol illegally provided to a companion underage drinker.

The Good Samaritan Law and Emergency Care

¶ 23. The trial court concluded that Merlin and Stephani were immune from liability under Wis. Stat. § 895.48(1) for anything they might have done, or not done, between the time Mueller returned to the shack and when she was taken to the hospital. According to that section of the Good Samaritan Law:

Any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care ....

Mueller contends critical portions of the law are ambiguous because "scene of any emergency or accident," "emergency care," and "good faith" are each susceptible of more than one meaning. She further contends the court erred when it determined there was no material question of fact as to whether the Switlicks' shack remained "the scene of an emergency or accident," whether the Switlicks' responses to Mueller's injuries constituted "emergency care," and whether they acted in "good faith." We agree the Switlicks are not immune from liability under Wisconsin's Good Samaritan Law.

¶ 24. When we interpret a statute, our goal is to ascertain and give effect to the statute's intended purpose. See, e.g., Wenke v. Gehl Co., 2004 WI 103, ¶ 32, 274 Wis. 2d 220, 682 N.W.2d 405. To achieve those goals, we begin with the language of the statute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is clear when we give its words their commonly accepted meanings, we ordinarily stop the inquiry. Id. A statute is ambiguous, according to the most common formulation of the test, if it is capable of being understood by reasonably well-informed persons in two or more senses. Id., ¶ 47.

¶ 25. Scene is commonly defined as "the place of occurrence or action" or "locale." Webster's Third New Int'l Dictionary 2028 (unabr. 1991). Emergency means both "an unforeseen combination of circumstances or the resulting state that calls for immediate action" and "a sudden bodily alteration such as is likely to require immediate medical attention." Id. at 741. Accident has an even broader meaning: "chance.. . sudden event or change occurring without intent or volition... an unexpected medical development esp. of an unfavorable or injurious nature." Id. at 11. Care is another general term whose definitions range from "suffering of mind" to "serious attention" to "custody.. . charge, supervision, management." Id. at 338-39. Based on these definitions, reasonably well-informed persons could clearly understand "scene of an emergency or accident" and "emergency care" in a variety of ways.

¶ 26. The term good faith only complicates the matter. Good faith can mean a "belief in one's legal title or right." Id. at 978. But it can also mean "absence of fraud, deceit, collusion, or gross negligence." Id. In other words, good faith can be measured subjectively or objectively. In the context of Wis. Stat. § 895.48(1), this ambiguous phrase would appear to control the determinations involved in identifying both the scene of an emergency or accident and rendering emergency care, amplifying the ambiguity of each.

¶ 27. No Wisconsin appellate court has construed the contested terms. However, the history of our Good Samaritan Law provides insight into the meaning of the statutory language. In 1963, the legislature granted immunity from civil liability to a limited group of professional individuals, primarily doctors and nurses, who in good faith "render[ed] emergency care at the scene of an emergency." Wis. Stat. § 149.06(5) (1963). The statute further defined scene of an emergency as areas "not within the confines of a hospital or other institution which has hospital facilities, or a physician's office." Id. The legislative intent was transparent: to encourage those with medical training to respond to emergency situations outside of the professional environment. The statute presumably does not define emergency care because it was directed at those who were trained to understand what that term meant in a variety of contexts.

¶ 28. In 1977, the legislature expanded immunity to include any person who rendered emergency care in good faith at the scene of an emergency or accident. See Wis. Stat. § 895.48 (1977). No definitions were added and the scene of emergency definition was removed.

¶ 29. As this history indicates, Wisconsin's current Good Samaritan Law encourages all citizens to respond to emergency situations by protecting them from liability for most acts or omissions in rendering care that have bad consequences. While the statute does not define the scene of the emergency or accident or emergency care, the ordinary meanings of those terms and the policies the statute serves demonstrate that when the Samaritan is a layperson, the intervention protected will ordinarily be of short duration and of an interim sort. Nothing in the statute suggests any intention that an ordinary person should make care-giving decisions any longer than the emergency situation necessitates.

¶ 30. Mueller argues that the Switlicks provided neither emergency care nor traditional first aid, which the trial court concluded satisfied the statutory requirement. She also argues alternatively that even if the first fifteen or twenty minutes after her return to the cabin constituted a period of emergency, the six or more hours after that while she slept and Stephani periodically checked on her cannot qualify as emergency care.

¶ 31. The Switlicks counter that it is the circumstances and not the type of care that matters. Emergency care is, they explain, "the type of care that may be provided at the scene of an emergency — regardless of what particular type of care might be provided." McMillan argues somewhat more specifically that Stephani provided attentive assistance, one definition of care, by comforting Mueller, observing her, and being vigilant for any change in symptoms that would "indicate something more serious than a bloody nose and nausea." We are not persuaded by either argument.

¶ 32. By her own account, Stephani went with Mueller, who was vomiting and bloody, into a bathroom where there was light. The two were going to start cleaning Mueller up when Mueller tried to lie down on the bathroom floor. Stephani's testimony was initially unclear on whether any cleaning was actually done. However, she eventually replied "yes" when asked "And you never got a chance to clean the blood off?" Stephani testified she then said, "Lina, instead of just laying there .... Why don't we take you and go lay you down in the bed." Once Mueller was in bed, Stephani covered her with a quilt. Stephani also testified that she brought one aspirin into the bedroom for Mueller, but did not know whether she took it, and that she took water into the room, but did not believe Mueller wanted any.

¶ 33. At some point, Stephani left Mueller and Apollo, who was lying on the same bed, and went into the living room. She went back into the room to check on the two "about every hour." She testified that when she came in Mueller would wake up and she would ask Mueller if she knew where she was or how she was feeling. The room was dark. At 6 a.m., Stephani asked Mueller if she knew where she was. Mueller replied, "Mom?" When Stephani asked Mueller another question, she did not respond. Stephani woke up another woman who was staying at the shack and asked her to look at Mueller. Stephani then called 911.

¶ 34. Suggesting that a bloody and vomiting woman lie in a bed rather than on a floor, covering her with a quilt, leaving her alone in a dark room for six or more hours, and periodically asking if she felt all right does not, we conclude, constitute emergency care. Other jurisdictions have found that relatively simple acts, such as providing transportation to an emergency room or asking whether accident victims need help, can constitute emergency care for the purposes of Good Samaritan statutes. But even if we disregard differences among Good Samaritan Laws, such persuasive precedent is factually distinguishable. In those cases, individuals provided care either by transporting injured persons to a place where their injuries could be treated or by attempting to make medical help available.

¶ 35. Here, by contrast, Stephani did nothing for Mueller she could not have done for herself, except waking her up during the night. Without cleaning Mueller's wounds, Stephani had no way of knowing what her injuries were. Questioning Mueller in the dark made it impossible for Stephani to observe any physical changes. And waking Mueller every hour or so does not indicate that Stephani treated her as someone whose state calls for "immediate action." That nothing was done to make medical help available to Mueller for over six hours only underscores the fact that Stephani was not responding as if to an emergency. Based on the undisputed facts in this case, the Switlicks thus did not provide any care that would entitle them to immunity from liability under Wis. Stat. § 895.48.

The Meaning of Garaging in a Homeowner's Policy

¶ 36. Finally, Mueller argues the trial court erred when it concluded the Switlicks' homeowner's policy with McMillan did not provide coverage for their son's use of a neighbor's ATV Again we agree.

¶ 37. Like the interpretation of statutes, the interpretation of an insurance policy is a question of law this court reviews without deference, applying the same rules of construction we apply to contracts generally. See Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, ¶¶ 22-23, 233 Wis. 2d 314, 607 N.W.2d 276. We interpret insurance policies as a reasonable person in the position of the insured would understand them. Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984).

¶ 38. Under lc of the Exclusions section of the Switlicks' homeowner's policy, McMillan will not pay for "bodily injury" or "property damage" arising out of "the ownership ... entrustment or use of. . . any 'recreational vehicle,'" if that injury or damage occurs away from the "insured premises." No one disputes that the accident in this case occurred away from the insured premises. The parties similarly agree that, for the purposes of the policy, an ATV is a recreational vehicle. This exclusion would thus deny coverage for Mueller's accident unless an exception pertaining to that exclusion reinstates it. See American Farn. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 24, 268 Wis. 2d 16, 673 N.W.2d 65.

¶ 39. Exclusion lc includes two exceptions. The first deals with motorized golf carts; the second states: " 'we' will cover: ... use of a 'recreational vehicle' which is not owned, garaged, or maintained by any 'insured person' on or off of the 'insured premises.'" The question before us is whether the exception to the exclusion for use of a recreational vehicle "which is not owned, garaged, or maintained by an insured person on or off the insured premises" applies to the facts in this case. More specifically, we must decide whether a recreational vehicle is garaged if it is left on a property for some period ranging from two and one half weeks to a single day.

¶ 40. Van Loh testified that he left his ATV at the Switlicks shack some two or two and a half weeks before the accident, although he had never left it there for more than a day or two in previous years. He also testified that he left the ATV in the detached garage near the shack, but later said that when he went to visit the Switlicks on October 25, 2003, the day of the accident, it might have been pushed outside. Apollo testified that he thought Van Loh brought his ATV over on the day of the accident. Stephani could not remember when the ATV appeared, but knew it had not been there during the July 4th holiday. Merlin testified that, at the time of the accident, all the ATVs were outside because his garage was full of lumber, a little Ford tractor, several freezers, and various barrels. The garage had been that full for around three weeks. He did not know how long Van Loh's ATV had been there. All agreed that Van Loh never paid the Switlicks for parking the ATV on their property and that there was no formal agreement or arrangement for his use.

¶ 41. No Wisconsin court has interpreted the term garaged when it appears in a homeowner's policy. Statutory requirements for uninsured motorist coverage typically refer to motor vehicles "registered or principally garaged in this state." See, e.g., Wis. Stat. § 632.32(4). In a case that turned principally on other issues, our supreme court commented that: "it could not be said that the Buick was principally garaged in Milwaukee; it had only been in Milwaukee approximately two to three weeks." Handal v. American Farmers Mut. Cas. Co., 79 Wis. 2d 67, 77, 255 N.W.2d 903 (1977). Though Handal does not define the term garaged, it implies that garaging entails a degree of permanence associated with time. Other jurisdictions have made that link more explicit. "We construe the term 'principally garaged' to mean the physical location where an automobile is primarily or chiefly kept." Chalef v. Ryerson, 648 A.2d 1139, 1141 (N.J. Super. 1994).

¶ 42. In everyday language, the word garage has several meanings when used alone: to keep or protect, a building used for housing an automobile, and a repair shop for automobile vehicles. That does not mean, however, that garage is necessarily ambiguous. All words have multiple meanings or shades of meaning, but context and other cues usually operate to save us from perpetual confusion. No reasonable person in the Switlicks' position would understand that this exclusion in a homeowner's policy would apply only to those who had a repair shop on their premises. Nor, despite McMillan's argument, would a reasonable person believe that one garages a car anytime one parks it any place. To the extent that a homeowner's policy is expected to provide coverage for an insured home, it would thus be reasonable to expect this exception to apply when that home is the permanent or regular place where the recreational vehicle is kept.

¶ 43. In this case, there is no evidence that Van Loh regularly left his ATV at the Switlicks' shack for extended periods. Nor is there any evidence that, on the single occasion in question, he left the ATV there for more than two-and-a-half weeks. We do not determine exactly how long it would take to turn parking into garaging, but we conclude that casual, one-time use of a property that spans less than three weeks is not sufficient to accomplish that transformation. Because Van Loh's ATV was not garaged on the Switlicks' property, the Switlicks' homeowner's policy with McMillan provides coverage for Mueller's accident.

By the Court. — Judgments reversed and cause remanded.

HOOVER, EJ.

¶ 44. {concurring). I concur with the result. I write separately and briefly, however, to take issue with the majority's treatment of the immunity issue under Wis. Stat. § 895.48(1), the Good Samaritan Law. First, I am not entirely convinced that Stephani Switlick's activities did not constitute providing "emergency care" to Mueller. On the one hand, it could be plausibly argued that Stephani was not providing care in the sense that she was not addressing the root cause of Mueller's symptoms. Rather, Stephani was arguably effectively preventing or delaying provision of care for an apparent traumatic head injury that caused nausea. On the other hand, while Mueller presented with a bloody nose and nausea, she was nevertheless able to ambulate and converse cogently with Stephani, until 6 a.m. Then, for the first time, Mueller responded inappropriately to the questions Stephani asked for the purpose of monitoring Mueller's cognitive functioning. I am not fully persuaded that when dealing with a person the nature of whose injuries are such that the severity is not manifest, monitoring someone's cognitive functioning on an hourly basis does not qualify as emergency care. However, I need not resolve this issue, because I would hold that even if Stephani provided emergency care to Mueller, she did not do so at "the scene of any emergency or accident." See Wis. Stat. § 895.48(1).

¶ 45. The trial court held, and the majority evidently agrees, that an emergency travels with the injured party, on the theory that once removed from the scene, the injured person still requires care. Unfortunately, neither of the respondents' briefs provide any further analysis on this point. In particular, they provide no discussion on how this concept of "the scene of any emergency" pertains to the entire time after Mueller was injured until she was placed in the ambulance some eight hours later.

¶ 46. The language utilized by the legislature suggests to me that the scene of an emergency, similar to the scene of an accident, refers to the location where the event giving rise to the need for emergency care occurred. The statute serves to encourage strangers who happen upon the scene of an emergency to stop and render aid, rather than avert their conscience, if not their eyes, and pass by to avoid potential liability. To extend the "scene" through to wherever the injured person ends up appears to me to broaden the immunity beyond the statute's language. Such an approach could include everyone "down the line" who renders care associated with an emergency, regardless of their relationship to where the event giving rise to the need for care occurred, or their relationship to the immediacy of the care necessitated by the event.

¶ 47. Based upon my alternative view, I would hold that any care Stephani provided to Mueller was not provided at the scene of an emergency. I therefore concur with the majority that immunity does not apply under Wis. Stat. § 895.48(1).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The ATV in question was owned by a family friend, Randy Van Loh.

       The record includes no account by Mueller of the events of that evening. Her injuries, which included a skull fracture, resulted in memory loss.

       The Switlicks owned two ATVs, but both were in use at the time. Apollo recognized Van Loh's ATV and knew its keys were ordinarily left in the starter.

       Apollo remembered nothing about the ride back to the shack and, based on his deposition testimony, was unclear about the sequence of events leading up to the accident.

       Mueller vomited immediately upon her return to the shack. It is unclear when Apollo began vomiting, but both he and Mueller vomited before and after they lay down for the evening.

        See Wis. Stat. § 125.035(2).

       Liability exists if the "provider knew or should have known that the ... person was under the legal drinking age and if the alcohol... provided to the underage person [is] a substantial factor in causing injury to a 3rd party." Wis. Stat. § 125.035(4) (b). But that liability is only triggered if the provider violates Wis. Stat. § 125.07(l)(a) which states that "no person may procure for, sell, dispense, or give away any alcoholic] beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age."

       The statute regulating youthful hunters does not, contrary to both Mueller's and McMillan's arguments, define accompany.

       On appeal, Mueller claims the trial court "did not find that the statute was ambiguous." She is correct that the court's written decision never makes that finding explicit; however, its extended discussion of the statute's history indicates that it did so implicitly.

       The attorney general has previously characterized certain portions of the statute as "plainly ambiguous" because they are neither "self-defining nor defined in the statute." 67 Op. Att'y Gen. 218 (1978).

       Read together, the definitions of "scene," "emergency," and "accident" suggest a focus on the victim's state or condition rather than on the character of the action that produced that state or the particular place in which that state first manifested itself. Such a reading is consistent with the broad purpose of Good Samaritan Laws: to encourage all of us to respond to human beings who need immediate medical help when and where we encounter them. A child injured in a snowmobile accident may be in no less need of emergency care if he or she stumbles a half mile before he or she is found than if he or she is found right beside the snowmobile.

        See David A. Suemnick, Wisconsin's "Good Samaritan" Statute, 48 MaRQ. L. Rev. 80, 85-89 (1964-65).

       Wisconsin Stat. § 895.48 was created by 1977 Wis. Laws, ch. 164, § 3, establishing a general Good Samaritan Law.

       The 1977 statute does retain a distinction between ordinary individuals and trained professionals:
      [t]his immunity does not extend when employees trained in health care ... render emergency care for compensation and within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital....
      Early drafts of the statute included a professional competence standard (in good faith and within the range of a person's professional competence) and a more general formulation of a standard of care ("shah not be construed as absolving from civil liability any person whose emergency care acts or omissions amount to a high degree of negligence"). Dawn B. Lieb, The Good Samaritan Statute: Wis. Stat. § 859.48, 62 Marq. L. Rev. 469, 474-75 (1978).

       In Swenson v. Waseca Mut. Ins. Co., 653 N.W.2d 796, 799-800 (Minn. App. 2002), the court found that transporting an injured child fell within the scope of the Good Samaritan Law even though the driver did not go directly from the scene of the accident to the hospital, but took a quarter-mile detour. The North Dakota Supreme Court concluded that a passerby who stopped at the scene of an accident to see if victims needed assistance was "rendering" emergency care because the person was attempting to make aid available. McDowell v. Gillie, 2001 ND 91, 626 N.W.2d 666, ¶ 12.

      I note that Mueller does not argue that if Stephani is immune under Wis. Stat. § 895.48(1), such immunity does not apply to Merlin or that the latter did or did not do anything regarding treatment to cause him to be separately liable in that regard.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    In re the Marriage of: Jeffrey S. Hacker, Petitioner-Respondent, v. Nancy M. Hacker, Respondent-Appellant.
    Court of Appeals

      No. 2005AP223-FT.

      Submitted on briefs May 25, 2005.

      Decided August 2, 2005.

    2005 WI App 211
    (Also reported in 704 N.W.2d 371.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Gregg S. Bott of Di Renzo & Bomier, LLC of Neenah.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Robert B. Loomis and Kelly S. Kelly of Herrling, Clark, Hartzheim & Siddall, Ltd. of Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-14-05.

   CANE, C.J.

¶ 1. Nancy Hacker appeals a judgment reducing her maintenance from $46,500 a year to $6,500 a year. Nancy argues the circuit court erred when it modified the award both because it did not properly consider the dual objectives of maintenance, support and fairness, and because it did not base its decision on its factual findings. She argues alternatively that the court used maintenance to punish her for her alcoholism, the reduced award was improperly calculated, and there was no finding of a "substantial change in circumstance" to support the modification. We need not reach the substance of all Nancy's claims because we conclude the reduced award does not satisfy the support objective of maintenance. We therefore reverse the judgment and remand the cause for further proceedings.

BACKGROUND

¶ 2. Nancy and Jeffrey Hacker were married on July 21, 1984, and divorced on July 9, 2003. During their eighteen-year marriage, they had two children, a son and a daughter, who were fifteen and six respectively when the Hackers divorced.

¶ 3. Nancy and Jeffrey both worked full-time throughout the marriage. Jeffrey, a certified public accountant, eventually became chief financial officer for Touchpoint Health Plan. Nancy worked as a special education teacher in the public schools. At the time of the post-divorce maintenance review, Jeffrey earned $144,000 a year. In 2002, before the Hackers' divorce, Nancy's annual salary was approximately $60,000. Nancy's employment was terminated in August 2002, however, because of problems attributed to her drinking. She was thus unemployed when the divorce was finalized; although she was collecting $43,500 a year in disability benefits. Those benefits ended in 2004, leaving Nancy, who was still unemployed, with no income.

¶ 4. The divorce judgment split the Hackers' $789,894 marital estate evenly between Nancy and Jeffrey. Nancy was initially ordered to pay Jeffrey $11,844 a year in child support while Jeffrey was ordered to pay Nancy $46,500 a year in maintenance. Noting the uncertainties surrounding Nancy's financial future, the circuit court declined to fix child support or maintenance permanently at that time, scheduling a hearing to review those awards in one year. After the September 2004 review hearing, the court ordered Jeffrey to pay Nancy $13,200 in child support and reduced Nancy's temporary maintenance award of $46,500 to $6,500 annually for an indefinite term. Nancy now appeals.

DISCUSSION

¶ 5. Under Wis. Stat. § 767.32, a circuit court has the authority to modify a maintenance order "upon a finding of a substantial change in circumstances." As a threshold matter, Nancy contends that we should reverse the circuit court's decision because the court never formally found a "substantial change in circumstances" and thus had no authority to modify the original maintenance order. She further contends the court could not have found such a change because Nancy's alcohol abuse was neither a "financial circumstance" nor "a substantial change." Jeffrey responds that it was unnecessary for the court to make a substantial change finding because the court described the initial maintenance as, in all probability, not permanent.

¶ 6. We have recently determined that our standard of review for whether there is a substantial change in circumstances is a deferential one. Cashin v. Cashin, 2004 WI App 92, ¶ 44, 273 Wis. 2d 754, 681 N.W.2d 255. We thus affirm the circuit court's decision on that matter if there is a reasonable basis in the record for the decision. Based on that standard of review, we must reject Nancy's argument that the absence of a formal finding of a substantial change in circumstances is sufficient to establish an erroneous exercise of discretion.

¶ 7. We are not persuaded by Jeffrey's contention that the court's characterization of the initial maintenance award as not permanent meant it was free to modify the order without finding a substantial change in circumstances. We have concluded elsewhere that a circuit court has the authority, if it provides appropriate and legally sound reasons, to "hold open" a final maintenance decision after declining to make a maintenance award at that time of a divorce. See, e.g., Grace v. Grace, 195 Wis. 2d 153, 158, 536 N.W.2d 109 (Ct. App. 1995). But Jeffrey never explains why the circuit court's behavior here is equivalent to a decision not to award maintenance and to retain jurisdiction by holding open the possibility of a future award. A judgment of divorce, including the maintenance award contained therein, is a final judgment, and it is not clear the circuit court can alter that status merely by noting circumstances that might make it necessary to modify the judgment in the future. See Kenyon v. Kenyon, 2004 WI 147, ¶ 25, 277 Wis. 2d 47, 690 N.W.2d 251.

¶ 8. But we need not resolve that issue here because we conclude that, while the circuit court never explicitly found a substantial change in circumstances, facts in the record support such a finding. At the time of the divorce, Nancy was still receiving disability benefits. Those benefits were no longer available in 2004, when the maintenance review hearing took place. Nancy's inability to control her drinking after completing multiple, intensive inpatient treatments also constitutes a substantial change in circumstance. Although Nancy claims that facts about her alcoholism are not a financial circumstance, they directly impact her earning capacity and thus affect her financial circumstances. See, e.g., Kenyon, 277 Wis. 2d 47, ¶¶ 31-32 (spouse's disability and pain worsened to the point she was unable to work).

¶ 9. When a circuit court modifies a maintenance award, it applies the same factors, set out in Wis. Stat. § 767.26, that govern the original determination of maintenance. See Rohde-Giovanni v. Baumgart, 2003 WI App 136, ¶ 8, 266 Wis. 2d 339, 667 N.W.2d 718, aff'd, 2004 WI 27, 269 Wis. 2d 598, 676 N.W.2d 452. The court need not consider all the statutory factors, but must consider those relevant to the case. See Poindexter v. Poindexter, 142 Wis. 2d 517, 532, 419 N.W.2d 223 (1988). The statutory factors further two distinct but related maintenance objectives: to support the spouse who receives maintenance in a manner that reflects the needs and earning capacities of the parties — the "support" objective — and to ensure a fair and equitable financial arrangement between the spouses — the "fairness" objective. LaRocque v. LaRoeque, 139 Wis. 2d 23, 33, 406 N.W.2d 736 (1987).

¶ 10. How much maintenance to award and for how long to award it are decisions entrusted to the sound discretion of the circuit court, and we will not disturb those decisions unless the court exercises its discretion erroneously. Id. at 27. A valid exercise of discretion is not, however, the equivalent of "unfettered decision-making." Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). Discretionary determinations must be the product of a rational mental process by which the facts of record and the law relied on are stated and considered together "for the purpose of achieving a reasoned and reasonable determination." Id.

¶ 11. We begin our review of any maintenance award, modified or otherwise, with a consideration of Wis. Stat. § 767.26, which gives the circuit court authority to grant maintenance after considering:

(1) The length of the marriage.
(2) The age and physical and emotional health of the parties.
(3) The division of property made under s. 767.255.
(4) The educational level of each party at the time of marriage and at the time the action is commenced.
(5) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
(6) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
(7) The tax consequences to each party.
(8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
(9) The contribution by one party to the education, training or increased earning power of the other.
(10) Such other factors as the court may in each individual case determine to be relevant.

A circuit court errs if it misapplies or fails to apply these factors, or if it fails to "give full play" to maintenance's dual objectives. See Hartung, 102 Wis. 2d at 66.

¶ 12. Nancy argues the court's reduced maintenance award of $6,500 annually is so low it does not meet her needs, place her at or near the marital standard of living, or reflect Jeffrey's ability to pay. She argues further that no statutory factor supports the reduction. Jeffrey counters that the court's written decision demonstrates it considered all the statutory factors. Although Jeffrey never directly addresses the question of whether the award meets both the fairness and support objectives of maintenance, he asserts that the court properly concluded it would be unfair to force him to subsidize Nancy's alcoholism. We agree with Nancy.

¶ 13. In the past, we have found maintenance awards of a mere fraction of a spouse's annual income inadequate. See Hubert v. Hubert, 159 Wis. 2d 803, 823, 465 N.W.2d 252 (Ct. App. 1990). While circumstances must adjust to economic reality, a court should not "reduce the recipient spouse to subsistence level while the payor spouse preserves the pre-divorce standard of living." LaRocque, 139 Wis. 2d at 35.

¶ 14. Jeffrey argues that our analysis of this case should be guided not by the logic of Hubert, but by the principles articulated in Forester v. Forester, 174 Wis. 2d 78, 496 N.W.2d 771 (Ct. App. 1993). In Forester, the spouse seeking maintenance gave up her job as a surgical technician, moved to the Virgin Islands, and started a charter sailing business that was not expected to generate income for the foreseeable future. Id. at 83. Under those circumstances, we concluded the circuit court erred by not considering either the spouse's current potential earning capacity as a surgical technician or her future earning capacity as a charter boat operator. Id. at 88-89. We noted that maintenance was designed to provide a party with an appropriate standard of living until the party "exercising reasonable diligence" reached an income level where maintenance was no longer needed. Id. at 89. We rejected the idea that one party could unilaterally make a career choice that substantially decreased her earnings while requiring her spouse to support her at the standard of living she enjoyed when she was employed in the job she abandoned. Id. at 91.

¶ 15. We do not, however, equate alcoholism with the kind of career choice on which the opinion in Forester turns. We have recognized elsewhere that alcoholism is a disease that, like other diseases, can limit or destroy an individual's earning capacity. See, e.g., DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 586-87, 445 N.W.2d 676 (Ct. App. 1989). We have also determined that an alcoholic spouse's refusal to obtain recommended treatment may be a relevant factor in a maintenance decision. Id. at 586. The function of the family court is not, as DeLaMatter noted, to be an enabler. Id. at 587. But DeLaMatter went no further than making the refusal to pursue treatment one factor a circuit court may consider in making a maintenance determination.

¶ 16. Unlike the alcoholic spouse in DeLaMatter, Nancy has not refused to seek treatment. She was in full-time treatment for eight months in 2002-2003 at a series of inpatient facilities. By her own admission, Nancy has suffered one or more relapses since that time, but there is no indication that she will not seek further treatment or that she is denying her condition. Unsuccessful treatment is not, as a factual matter, the same as refusing treatment. Treatment for alcoholism is difficult, and many recovering alcoholics lapse more than once before they are able to control the disease. Nor is alcoholism the only disease that is difficult to treat. Not all cancer treatments succeed and many Americans afflicted with diabetes struggle to control their symptoms. The facts in this case thus make it distinguishable from DeLaMatter. More importantly, even if the circuit court determined that a history of failed treatment was a relevant factor, under the "catchall" or health subsections of Wis. Stat. § 767.26, the court's award must still reflect a proper concern for both the objectives of maintenance.

¶ 17. Here, the court circuit found that Nancy needed a monthly income of $5,400 to live at a standard comparable to that she enjoyed while married. That amount would, it noted, be "equitable" under ordinary circumstances, and "well-within Jeffrey's ability to provide." The court went on to find that, if she continues to drink, Nancy will likely be unable to earn more than $12,000 a year in a minimum wage position. Based on those findings, it calculated that Jeffrey would have to pay Nancy $41,250 a year to ensure her a disposable income of $5,400 a month. It finally concluded, however, that such an award would be unfair because Nancy, not Jeffrey, should bear the burden of her alcoholism.

¶ 18. The circuit court's written decision indicated that holding Nancy accountable for her bad choices is not contrary to public policy and that her continued drinking constitutes a species of waste. To avoid punishing the Hackers' children while they were with their mother, the court ordered Jeffrey to pay Nancy $13,200 a year in child support. To ensure that Nancy bore the burden of her alcoholism, it ordered Jeffrey to pay only what he would have had to pay in maintenance "had the tragedy of alcoholism not occurred," $6,500 a year.

¶ 19. The circuit court's desire to craft a maintenance award that is fair to Jeffrey is understandable. However, as we have long emphasized, maintenance has two objectives — fairness and support — and nothing in Wis. Stat. § 767.26 or in Wisconsin case law authorizes an award that satisfies one objective by entirely negating the other. Based on the court's findings of fact, Nancy needs over $5,000 a month to live in a manner that would approximate her marital standard of living, a sum her husband is capable of paying. Yet the court awarded her only $6,500 a year. It is possible that Nancy could make up the shortfall by controlling her drinking and regaining her old earning capacity, but that is merely speculation. Even if Nancy stops drinking, it is unclear whether, after a series of convictions for operating a vehicle while intoxicated and several years of unemployment, she could find a job that pays what she once earned. It is equally unclear what her future earning capacity is. The effect of the award, again based on the court's own findings of fact, is to allow Jeffrey to maintain the standard of living that he enjoyed in marriage while radically reducing Nancy's.

¶ 20. We therefore conclude the circuit court erred when it determined that the pursuit of fairness for one party required a maintenance award that did not come close to providing Nancy with adequate support. To give full play to the fairness and support objectives of maintenance, the court must craft an award based on the facts as it finds them and not on the facts as they might become or as they should have been.

By the Court. — Judgment reversed and cause remanded.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The Hackers agreed to joint legal custody, but primary physical placement was awarded to Jeffrey.

       Nor are we required to develop Jeffrey's argument for him. See, e.g., Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995).

       Other jurisdictions have recognized, as did the circuit court here, that alcoholism is a disease. See, e.g., DeSipio v. DeSipio, 186 A.2d 624, 627 (D.C. App. 1962).

        See generally, Kimberly S. Walitzer and Gerard J. Connors, Treating Problem Drinking, 138 Vol. 23, No. 2, Alcohol ReseaRch and Health (1999), at http://www.niaaa.nih.gov/ publications/arh23-2/138-143.pdf (July 27, 2005).

       The court calculated a variety of possible awards, factoring in different placement and child support scenarios.


author: PETERSON, J.

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

      No. 2005AP515-CR.

      Submitted on briefs July 5, 2005.

      Decided August 2, 2005.

    2005 WI App 213
    (Also reported in 704 N.W.2d 410.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Len Kachinsky of Sisson and Kachinsky Law Offices, Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Danielle M. Prato, Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Upon this court's motion and order of July 29, 2005, this case is decided by a three-judge panel.

   PETERSON, J.

¶ 1. Joseph DeFilippo appeals a judgment of conviction for two counts of battery, two counts of disorderly conduct, and one count of knowingly violating a domestic abuse order, all misdemeanors. DeFilippo appeared pro se at his jury trial and argues he is entitled to a new trial because the record does not show he knowingly, intelligently and voluntarily waived his right to counsel. We agree and reverse the judgments.

BACKGROUND

¶ 2. On June 12, 2003, DeFilippo appeared before the court commissioner and stated he wanted to plead not guilty and waive his right to counsel. Without further inquiry, the court commissioner accepted the waiver and scheduled trial for July 16, 2003. DeFilippo appeared pro se at his jury trial, where he was found guilty of all charges and was sentenced on January 2, 2004. He subsequently filed a postconviction motion for a new trial, arguing that he did not adequately waive his right to an attorney.

¶ 3. An evidentiary hearing took place on November 1, 2004. DeFilippo testified he recalled a meeting held in the judge's office on the day of trial regarding whether he was going to accept a plea agreement. However, he did not recall any discussion of the advantages and disadvantages of self-representation. The assistant district attorney testified she recalled that the State had revoked a plea offer. She further stated that there was a conversation between the court and DeFil-ippo regarding the advantages and disadvantages of self-representation. However, she did not remember whether DeFilippo indicated he understood, but that DeFilippo did not have any questions when asked.

¶ 4. The judge recalled the meeting took between twenty and thirty minutes, that they discussed the plea offer, and also discussed cases DeFilippo had been involved with in Texas and Pennsylvania. He recalled advising DeFilippo that he would have a fool for a client if he represented himself, and that he would be expected to follow the rules. The judge stated that DeFil-ippo was aware of his right to counsel and waived it. The court therefore supplemented the record and denied the motion.

DISCUSSION

¶ 5. A criminal defendant may waive his or her right to counsel in criminal trial court proceedings, provided the record reflects that the waiver is knowingly and voluntarily made. State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997). The trial court must engage in a colloquy with the defendant to establish a knowing and voluntary waiver. The colloquy must be designed to ensure that the defendant (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him or her, and (4) was aware of the general range of penalties that could have been imposed upon him or her. Id. at 206.

¶ 6. Here, there is no record showing whether DeFilippo adequately waived his right to counsel. There was apparently a conversation between the court and DeFilippo in the judge's chambers, but it was unrecorded. Therefore, the main issue in this case is whether the court properly reconstructed the record to reflect what was discussed in chambers. If it did not, there is insufficient evidence to show that DeFilippo knowingly and voluntarily waived his right to counsel. In a reconstruction hearing,

the judge must be satisfied that the reconstructed record accurately reflects what actually happened to the same level required in the proceeding itself. That is, to reconstruct a portion of a criminal trial, the trial judge must find that the record has been adequately reconstructed beyond a reasonable doubt.

State v. Raflik, 2001 WI 129, ¶ 54, 248 Wis. 2d 593, 636 N.W.2d 690 (citations omitted). We review the reconstruction under the clearly erroneous standard. See id. at ¶ 36; State v. DeLeon, 127 Wis. 2d 74, 82, 377 N.W.2d 635 (Ct. App. 1985).

¶ 7. We begin our analysis with a review of the law regarding reconstruction of a record. We first addressed this issue in DeLeon. There, we stated that the first step is for the trial court to determine whether the missing part of the record can be reconstructed. Id. at 77-78. If it can, then the parties should work together to reconstruct it. Any disputes are to be settled by the trial court, which may rely on its own recollection and notes or materials from the parties. Id. at 80-82. If the record cannot be reconstructed, the court should order a new trial. Id. at 82.

¶ 8. Our supreme court expanded DeLeon in State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987), stating that the circuit court should consider "the nature of the case, the nature of the claim of error, the passage of time from the date a transcript originally was, or should have been, prepared, and whether the trial was to the court or to a jury." Id. at 98. The trial court in Perry did not address these factors and therefore the supreme court concluded the reconstruction was not adequate beyond a reasonable doubt. Id. at 108.

¶ 9. The supreme court applied the DeLeon and Perry principles in Raflik. Its decision in that case is particularly helpful to our determination here. In Raf-lik, the supreme court reviewed the reconstruction of a warrant application. A detective from the Washington County Sheriffs Department and the assistant district attorney applied for a telephonic search warrant. The detective and the judge issuing the warrant were under the impression their conversation was being recorded, and the judge granted the warrant. However, the next morning the detective discovered the conversation had not been recorded and notified the judge. The detective also prepared an affidavit of what had transpired. Raflik, 248 Wis. 2d 593, ¶¶ 3-7.

¶ 10. Later that afternoon, the judge convened a hearing with the detective and the assistant district attorney. The detective testified to the events of the previous night. The judge also questioned the detective. The judge then concluded there was probable cause for the search warrant and that they had adequately recreated the warrant application. The detective's affidavit was attached to the record. Id., ¶¶ 8-11.

¶ 11. On appeal, the supreme court determined that

many of the same factors announced by the Perry and DeLeon courts should be taken into consideration, particularly the length of time between the application and the reconstruction, and the length of the reconstructed segment in relation to the entire warrant request. In addition to these factors, a trial court should also consider if there were any contemporaneous or nearly contemporaneous written documents, such as notes, that were used to reconstruct the record, the availability of witnesses used to reconstruct the record, and the complexity of the segment reconstructed.

Id., ¶ 41. The court then proceeded to find that the record was appropriately reconstructed. It noted the length of the warrant application was short and only the detective needed to testify. Further, the facts were uncomplicated and easily remembered, and were corroborated by the detective's affidavit and warrant documents the detective and the judge filled out at the time of the telephone conversation. Id., ¶ 42.

Perhaps, most importantly, the application was reconstructed only 18 hours after the actual application when the events of the previous night were still fresh in the minds of all the participants .... This is in sharp contrast to a case like Myers, [a Washington State case], where almost four months had elapsed between the application and the reconstruction.

Id., ¶ 43.

¶ 12. We now turn to the facts of the present case. DeFilippo argues that many of the DeLeon and Perry factors weigh against reconstruction. First, fifteen months passed before reconstruction. He also notes that, unlike in Raflik, the unrecorded meeting here was long. As the judge noted at the reconstruction hearing, the meeting took between twenty and thirty minutes. Furthermore, he argues that there are no contemporaneous notes supporting the judge's version of the facts. Finally, he argues the judge functioned as an advocate for his view and therefore lost his neutrality.

¶ 13. The State's response focuses only on the judge's role in the proceedings. We agree with the State that the judge acted properly in that regard. As the Perry court noted, a judge may resolve disputes during reconstruction of the record, based on the judge's "recollection, trial notes, consultation with counsel, affidavits, or recall of witnesses." Perry, 136 Wis. 2d at 102. However, this factor alone is not enough to uphold the reconstruction. DeLeon, Perry and Raflik list several relevant factors. We therefore turn to an analysis of these, using Raflik as our guide.

¶ 14. We begin with the length of time between the hearing that should have been recorded and the reconstruction — fifteen months. Raflik specifically noted that the eighteen hours that had passed before reconstruction was "in sharp contrast" with the four-month delay in the Washington case. Fifteen months is obviously much longer than four months, and is certainly long enough for recollections to become inaccurate. Because the reconstruction here was primarily based on the recollections of the judge and the assistant district attorney, we conclude this passage of time weighs against reconstruction.

¶ 15. Another factor is the length of the reconstructed segment. The judge stated at the hearing that the entire meeting lasted between twenty and thirty minutes, but concluded in his written decision that the segment regarding DeFilippo's waiver of counsel would have been relatively short — a "scant few minutes." When a defendant expresses the desire to waive representation, the court must enter into a colloquy to demonstrate that the defendant (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charges, and (4) was aware of the general range of penalties. Klessig, 211 Wis. 2d at 206-07. We agree with the judge that the waiver portion of the hearing might take a short period of time, but it also might take longer. Therefore, this factor is neutral at best.

¶ 16. Next is whether there were any contemporaneous documents used to reconstruct the record. Here there are none. The parties and the judge relied on their memories of a meeting that occurred fifteen months earlier. This is in contrast to Raflik, where the detective and the judge simultaneously but separately filled out warrant forms at the time of the telephonic warrant. Raflik, 248 Wis. 2d 593, ¶ 42. These were used to aid in reconstruction of the record. Id. Furthermore, shortly after the detective in Raflik learned that the telephonic warrant was not recorded, he prepared an affidavit of the proceedings, which was used to help reconstruct the record. Id. Nothing similar exists in this case. Therefore, this factor weighs against reconstruction.

¶ 17. The availability of witnesses used to reconstruct the record is another factor. Here, all the necessary witnesses were available and testified. Therefore, this factor does not weigh against reconstruction.

¶ 18. The final factor is the complexity of the segment reconstructed. As we have noted, there must have been a specific and significant colloquy with DeFilippo to establish he adequately waived his right to counsel. See Klessig, 211 Wis. 2d at 206-07. This involves a discussion of several factors. Thus, we conclude the reconstructed segment is fairly complex, dealing with an important constitutional right and therefore weighs against reconstruction.

¶ 19. Finally, we note that in Raflik, the detective and judge thought their conversation was being recorded only to discover later it was not. Raflik, 248 Wis. 2d 593, ¶¶ 4-8. Here, the failure to record was not inadvertent. We take this into account in our determination as well.

¶ 20. After reviewing the factors, we conclude the court erred in reconstructing the record. As we have noted, the court must be satisfied beyond a reasonable doubt that the reconstructed record adequately reflects what actually occurred. Id., ¶ 54. Here we are particularly concerned with the amount of time that passed before reconstruction; the fact that the reconstruction was done simply based on the recollection of the parties, with no corroborating notes or documents; and the fact that the reconstructed hearing dealt with a basic and fundamental constitutional right. We therefore conclude there is reasonable doubt that the reconstruction is adequate to show that all the required factors necessary for waiver were explored. Consequently, the record does not show that DeFilippo knowingly and voluntarily waived his right to counsel. We thus reverse the judgment against him and remand for a new trial.

By the Court. — Judgment reversed and cause remanded.

       In the Washington case, State v. Myers, 815 P.2d 761, 764 (Wash. 1991), a telephonic warrant was not recorded. The supreme court concluded the only evidence that could reconstruct the warrant was the police officer's testimony regarding the telephonic warrant, which occurred four months previously. This was insufficient to reconstruct the record. Id. at 768. The judge who issued the warrant in that case did not recall the details supporting probable cause for the warrant. Id. at 764.


author: SNYDER, J.

text:
    Kip D. Erickson, Petitioner-Appellant, v. Labor and Industry Review Commission and Quad/Graphics, Inc., Respondents-Respondents.
    Court of Appeals

      No. 2004AP3237.

      Submitted on briefs June 22, 2005.

      Decided August 3, 2005.

    2005 WI App 208
    (Also reported in 704 N.W.2d 398.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of John S. Williamson, Jr., Appleton.
    On behalf of the respondent-respondent Labor and Industry Review Commission, the cause was submitted on the brief of David C. Rice, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    On behalf of the respondent-respondent Quad/ Graphics, Inc., the cause was submitted on the brief of Stacie J. Andritsch and Thomas W. Scrivner of Michael Best & Friedrich LLP, Waukesha.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 10-14-05.

   SNYDER, J.

¶ 1. Kip D. Erickson appeals from a judgment affirming a decision of the Labor and Industry Review Commission. LIRC decided that Quad/ Graphics, Inc. (Quad) did not unlawfully discriminate against Erickson on the basis of disability because it concluded Erickson failed to prove that he was an "individual with a disability" within the meaning of the Wisconsin Fair Employment Act (WFEA). See Wis. Stat. § 111.32(8) (2003-04). The circuit court agreed, stating that "the transcript indicates that [Erickson] has wholly failed to meet his factual burden with respect to either disability (permanent or otherwise)." Erickson contends that the court erred because he has established that he is an individual with a disability within the meaning of the WFEA. We disagree with Erickson and affirm the judgment of the circuit court.

FACTS

¶ 2. Quad hired Erickson as a janitor in February 1996. Erickson performed various cleaning duties at the plant, including waxing and refurbishing floors. On April 10, 2000, Erickson injured his back while operating a walk-behind scrubbing machine. He completed and submitted an injury report, stating that he had been "operating the walk behind scrubbing machine, pushing it to clear lower imaging floors when back muscles tightened up and became real sore."

¶ 3. On April 12, Erickson was examined at the Quad/Med Clinic and diagnosed with a thoracic strain. He was referred to rehabilitation, prescribed medication, and released to return to work on April 13 with temporary restrictions on lifting, twisting, squatting, and crouching. Between April 12 and June 28, 2000, several medical professionals evaluated Erickson and each released him to work with temporary restrictions. During this time, Quad permitted Erickson to perform tasks consistent with the work restrictions.

¶ 4. On July 19, 2000, an independent medical examiner concluded that Erickson could work without restrictions. Quad's workers' compensation coordinator, Mary Wolfe, advised Erickson that he would have to return to his normal duties or take a medical leave without pay. Erickson decided to perform his normal work, although he continued to experience pain, tightness, and inflammation in his back.

¶ 5. Erickson submitted a report prepared by Dr. Charles Shoham on March 13, 2001, wherein Dr. Sho-ham opined that Erickson suffered from back myofas-cial pain, a permanent condition requiring permanent work restrictions. The restrictions imposed by Dr. Sho-ham were as follows: no lifting more than forty pounds, no carrying more than forty pounds, no repetitive pushing or pulling, and no repetitive bending, twisting or lifting.

¶ 6. On March 19, Wolfe, Erickson, and Erickson's direct supervisor, Dave Litschauer, met to discuss Dr. Shoham's report and the potential impact on Erickson's ability to perform his janitorial duties. The discussion revealed that Erickson's work restrictions made it too difficult for him to perform his job duties. Wolfe then explained that Erickson had some options, including: (1) continue working as a janitor without restrictions, (2) take an unpaid medical leave, or (3) transfer to another job at Quad that was consistent with his work restrictions.

¶ 7. Erickson claims, but Quad denies, that Quad "suspended" him from his job. Quad claims that it referred Erickson to its internal career assistance department, which assists employees with job issues and job changes. Erickson agrees that he was offered career assistance, but concedes he did not call to follow up on the service for the next six months. It is undisputed that Erickson has not returned to work at Quad since March 19, 2001.

¶ 8. On July 11, 2001, Erickson filed a WFEA disability discrimination complaint with the Equal Rights Division of the Department of Workforce Development. He alleged that Quad discriminated against him by terminating his employment because of a disability and refusing to reasonably accommodate a disability. In an initial determination, an investigator for the Division concluded that there was probable cause to believe Quad had violated the WFEA. The case was certified for a hearing.

¶ 9. The hearing took place on April 1 and 2, 2003. Based on the evidence received, the hearing examiner made several findings of fact, including that: (1) Erickson did not have a physical impairment which made achievement unusually difficult or which limited his capacity to work, and (2) Quad did not have a record of Erickson having, or perceive Erickson as having, such a physical impairment. The examiner concluded that Erickson "failed to establish by a fair preponderance of the evidence that he had a disability within the meaning of the Wisconsin Fair Employment Act." Erickson's complaint was dismissed.

¶ 10. On May 25, 2003, LIRC issued a Fair Employment Decision affirming the hearing examiner's dismissal of Erickson's complaint. LIRC's memorandum opinion provided:

The fact that the complainant was injured at work and suffers from back pain does not warrant a conclusion that he has a disability, absent any evidence as to the nature and extent of the impairment. Moreover, no evidence was presented regarding the permanency of the condition, and the commission is unable to make any conclusions as to whether the complainant's back problem was a permanent condition or a temporary one which could be expected to heal over time. The commission has consistently held that disabilities which are merely temporary do not fall within what is intended to be covered by the Act's prohibition on discrimination because of disability.

Erickson appealed to the Washington County Circuit Court, which affirmed LIRC in a written opinion dated October 27, 2004, and a judgment entered on November 12. Erickson appeals.

DISCUSSION

¶ 11. Erickson first contends that LIRC and the circuit court erred when determining that to be actionable under the WFEA, a disability must be permanent. Specifically, Erickson states that LIRC's "holding that a physical impairment must be permanent to be a disability under WFEA is clearly contrary to the legislative intent of WFEA." The relevant statute states: " 'Individual with a disability' means an individual who: (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) Has a record of such an impairment; or (c) Is perceived as having such an impairment." Wis. Stat. § 111.32(8). Erickson points out that the statute does not contain a reference to permanency and argues that LIRC's interpretation adds an improper restriction to the language adopted by the legislature.

¶ 12. Erickson also contends that he presented sufficient evidence to show the nature of his claimed disability and any holding to the contrary is error. He maintains that he presented undisputed evidence of a back injury that prevented him from "performing... the normal functions of twisting, pulling, pushing, bending, and lifting repetitively and limits his capacity to perform all his job responsibilities and which also requires him to remain under a physician's care and to take prescription drugs to alleviate pain." He contends that pursuant to our supreme court's holding in Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 398, 215 N.W.2d 443 (1974), a disability must be interpreted not as a technical term of art, but according to common and approved usage. Erickson further contends that he presented sufficient evidence that Quad perceived him as having a physical impairment that limited his capacity to work.

¶ 13. On appeal, we review the LIRC decision and not the judgment of the circuit court. See Schwartz v. DOR, 2002 WI App 255, ¶ 14, 258 Wis. 2d 112, 653 N.W.2d 150. Three standards of deference govern judicial review of agency conclusions of law and statutory interpretation: great weight, due weight, and de novo. Wolter v. DOR, 231 Wis. 2d 651, 655-56, 605 N.W.2d 283 (Ct. App. 1999). Great weight, the most deferential standard, applies when (1) the agency was charged by the legislature with the duty of administering the statute, (2) the agency's interpretation of the statute is long-standing, (3) the agency employed its expertise or specialized knowledge in forming the interpretation, and (4) the agency's interpretation provides uniformity and consistency in the application of the statute. Id.

¶ 14. Here, any decision made by LIRC will be given great weight deference due to the agency's knowledge and experience in the application of the WFEA. See Target Stores v. LIRC, 217 Wis. 2d 1, 13, 576 N.W.2d 545 (Ct. App. 1998). Accordingly, we will sustain LIRC's decision unless it directly contravenes a statute, is clearly contrary to legislative intent, or lacks a rational basis. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661-62, 539 N.W.2d 98 (1995).

¶ 15. We turn first to Erickson's argument that LIRC improperly ruled that Wis. Stat. § 111.32(8) requires a permanent impairment. Erickson relies on Target Stores for support of his contention that a temporary disability is actionable under the WFEA. The analogy fails, however, because in Target Stores the parties stipulated to a disability. Target Stores, 217 Wis. 2d at 10. The sole issue we addressed there was whether "clemency and forbearance" would have been a reasonable accommodation of the employee's conceded disability. Id.

¶ 16. For over twenty years, LIRC has interpreted the term "disability" within the WFEA to require a permanent impairment. Had our legislature considered this an inappropriate reading of the statute, it could have revised the language to include temporary impairments. We will not impose a new interpretation where our legislature has seen fit to let the statutory language, as applied by LIRC, stand. Cf. A.B.C.G. Enters., Inc. v. First Bank Southeast, N.A., 178 Wis. 2d 370, 376, 504 N.W.2d 382 (Ct. App. 1993) (where a statute is re-enacted with no change in the pertinent language, a judicial interpretation of the prior statute is presumed to apply), affd, 184 Wis. 2d 465, 515 N.W.2d 904 (1994). We conclude that LIRC properly interpreted Wis. Stat. § 111.32(8) to require Erickson to demonstrate a permanent impairment.

¶ 17. Next, Erickson argues that he submitted sufficient proof to establish a disability under the WFEA. To prevail on his disability discrimination claim, Erickson must establish that he has a physical impairment as contemplated by the WFEA. A physical impairment is an "actual lessening, deterioration, or damage to a normal bodily function or bodily condition, including the absence of such function or condition." City of La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 760, 407 N.W.2d 510 (1987). Proof of a disability requires competent medical evidence of the employee's alleged impairment. See Connecticut Gen. Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 407-08, 273 N.W.2d 206 (1979) (diagnosis of a disability, here alcoholism, requires expert medical opinion).

¶ 18. At his hearing, Erickson testified that he injured himself at work, his back muscles tightened up, he experienced muscle spasms, he had pain and inflammation, and certain movements caused him pain in his back. He did not, however, offer any competent medical evidence of the nature, extent, or permanency of his back injury. LIRC summed up the situation as follows:

[Erickson] presented no medical evidence on his behalf, either in the form of physician testimony or competent medical records upon which a fact-finder could base a conclusion about the nature of his condition. While [Erickson] did present copies of work restrictions prepared by various physicians, it was stipulated at the hearing that these documents were submitted for the sole purpose of demonstrating what information was provided to [Quad] and when, and not as proof of the underlying medical opinions or diagnoses.
[Erickson's] evidence is insufficient to establish that he has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, within the meaning of the Act. The fact that [Erickson] was injured at work and suffers from back pain does not warrant a conclusion that he has a disability, absent any evidence as to the nature and extent of the impairment. Moreover, no evidence was presented regarding the permanency of the condition, and the commission is unable to make any conclusions as to whether [Erickson's] back problem was a permanent condition or a temporary one which could be expected to heal over time.

¶ 19. Erickson relies on Swanson v. State Street Stylists, No. 199600028 (LIRC Nov. 26, 1997), for the proposition that a layperson's testimony can establish a disability. While there was no expert testimony in Swanson, the issue was not whether the layperson's testimony was sufficient, but rather whether the employee had a record of a disability See id. Again, Erickson's attempt to draw a persuasive analogy fails. To demonstrate that a disability under the WFEA exists, the complainant must present "competent evidence of a medical diagnosis" regarding the alleged impairment. See Connecticut Gen. Life, 86 Wis. 2d at 407-08.

¶ 20. In the alternative, Erickson claims that he is an individual with a disability under Wis. Stat. § 111.32(8)(c) because Quad perceived him as having a physical impairment. Erickson must show that Quad determined that he had an impairment that made achievement unusually difficult or limited his capacity to work, and discriminated against him on that basis. See City of La Crosse Police & Fire Comm'n, 139 Wis. 2d at 762, 766 (a person alleging discrimination based on a disability under the WFEA must establish an actual or perceived impairment, that such condition either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work, and that the employee was discriminated against on the basis of that actual or perceived disability).

¶ 21. Quad contends that it believed Erickson "never had anything more than a temporary condition based upon competent medical records received from [the independent medical examiner]." Erickson's supervisor, Litschauer, testified that he had "multiple doctors thrown at me trying to manage a guy that says he's still hurt." In the face of conflicting medical reports, Quad continued to accommodate Erickson's requests for light-duty work. This was done despite the independent medical report indicating that Erickson had no permanent impairment. By so doing, Quad supported Erickson's efforts to continue working and ultimately upheld the purpose of the WFEA, that is, to enable individuals to work. See Wis. Stat. § 111.31(2); Brown County v. LIRC, 124 Wis. 2d 560, 563, 369 N.W.2d 735 (1985). We would undermine the purpose of the WFEA were we to conclude that Quad's decision to grant Erickson's requests for light-duty work, rather than terminating his employment for refusing to perform his regular job duties, was proof of a perceived disability under Wis. Stat. § 111.32(8)(c).

¶ 22. The hearing examiner concluded that Erickson did not establish a perceived disability because:

(1) he failed to establish what his condition actually was, (2) he failed to establish that anyone at Quad Graphics formed a conclusion regarding what his condition actually was, and (3) the only clear evidence about an agent for Quad Graphics forming an opinion regarding Mr. Erickson's condition is the credible evidence that both [Wolfe and Litschauer] concluded after receiving [the independent medical examiner's] report that Mr. Erickson did not have a permanent partial disability as that is defined by the Workers Compensation Law.

We agree. Erickson failed to establish that Quad perceived him as having an impairment that made achievement unusually difficult or limited his capacity to work and then discriminated against him on that basis. See City of La Crosse Police & Fire Comm'n, 139 Wis. 2d at 762, 766.

CONCLUSION

¶ 23. We conclude that Erickson has failed to meet his burden of proof. He produced no competent medical evidence as to the nature, extent, and permanency of his back injury. Further, he failed to establish that Quad perceived him as disabled as that term is defined in Wis. Stat. § 111.32(8). LIRC's decision is consistent with the statute and underlying legislative intent, and it provides a rational basis for the result. Accordingly, we affirm the judgment of the circuit court, which upheld LIRC's decision. See Harnischfeger Corp., 196 Wis. 2d at 662.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

        See, e.g., Greco v. Snap-On Tools Corp., No. 200200350 (LIRC May 27, 2004) ("not every medical condition rises to the level of a disability"; temporary disability resulting from an injury was not a "disability"); Falk v. WIPC LLC, No. 200200400 (LIRC Dec. 18, 2003) ("back impairment due to slow recovery from surgery" was not a disability where medical evidence indicated it was a temporary condition); Reinke v. Pick 'n Save Mega Food Ctrs., No. 199703205 (LIRC Jan. 28, 2000) (disabilities which are merely temporary do not fall within what was intended to be covered by the WFEA's prohibition against disability discrimination); Pizl v. Waukesha Bearings Corp., No. 8102557 (LIRC Mar. 9, 1983) (temporary disability sustained while on the job was not considered a handicap); Terrell v. Pabst

        Brewing Co., No. 7606616 (LIRC Mar. 4, 1981) (short-term illness such as bronchitis was not considered a handicap).

       During the course of the hearing, the examiner advised Erickson as follows:
      [Wlhere [Quad] is receiving different information regarding [Erickson's] condition, my understanding is I do not have the authority to make a finding of what his actual condition is without a doctor here. If either of you think that I do have such an authority, [then] you need to show how and where and in what manner I'm to resolve this without somebody here to testify.