author: CANE, C.J.

text:
    St. Paul Fire & Marine Insurance Company, Plaintiff-Third-Party Defendant-Respondent-Petitioner, v. Curtis J. Keltgen, Defendant-Third-Party Plaintiff-Appellant-Cross-Respondent, Paulet Keltgen, Intervenor-Third-Party Plaintiff, v. Giles Smith, Third-Party Defendant, L.E. Phillips Career Development Center, Inc., Third-Party Defendant-Respondent-Petitioner-Cross-Respondent, Venture Insurance Company and Wausau Insurance Company, Third-Party Defendants-Respondents-Cross-Appellants.
    Court of Appeals

      No. 02-1249.

      Submitted on briefs January 7, 2003.

    Decided February 4, 2003.

    2003 WI App 53
    (Also reported in 659 N.W.2d 906.)

      On behalf of Curtis J. Keltgen, the cause was submitted on the briefs of Phillip Todryk of Todryk Law Office, S.C. of Hudson.
    On behalf of St. Paul Fire & Marine Insurance Company and L.E. Phillips Career Development Center, Inc., the cause was submitted on the joint brief oí John P. Richie of Richie, Wickstrom & Wachs, LLP of Eau Claire, and Gregory Deckert of Vest & Deckert, PA. of Brooklyn Center, Minnesota.
    On behalf of Venture Insurance Company and Wau-sau Insurance Company, the cause was submitted on the joint briefs of James A. Pelish of Thrasher, Doyle, Pelish & Franti, Ltd. of Rice Lake, and Robert J. Dreps and James D. Peterson of La Follette, Godfrey & Kahn of Madison.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review filed.

   CANE, C.J.

¶ 1. Curtis Keltgen appeals a summary judgment in favor of L.E. Phillips Career Development Center (CDC), and its insurers, St. Paul Fire & Marine Insurance Company, Venture Insurance Company and Wausau Insurance Company. Keltgen's action originated as a counterclaim against CDC and its insurers for negligence and various claims under the patient's rights section of Wis. Stat. ch. 51. Keltgen was a sheltered employee at CDC and was sexually assaulted by a fellow sheltered employee. St. Paul initiated this action, seeking a judgment declaring that CDC's liability for the assaults was limited to worker's compensation.

¶ 2. The trial court dismissed all but one of Keltgen's Wis. Stat. ch. 51 claims and later granted summary judgment, determining any recovery for that claim would duplicate the worker's compensation benefits Keltgen had already received. The court also granted CDC summary judgment on Keltgen's negligence claim, concluding CDC did not have a dual persona in its relationship with Keltgen and his recovery was limited by the exclusive remedy provision of the Worker's Compensation Act (WCA).

¶ 3. On appeal, Keltgen argues the court erred when it dismissed the majority of his Wis. Stat. ch. 51 claims and when it concluded the recovery under his remaining claim would duplicate his worker's compensation recovery. Keltgen also claims CDC had a dual persona in its relationship with him and the court should have allowed his negligence claim. We conclude the trial court properly dismissed the majority of the ch. 51 claims and correctly concluded any recovery under the remaining claim would duplicate Keltgen's worker's compensation settlement. In addition, we determine CDC did not have a dual persona in its relationship with .Keltgen and the court properly dismissed his negligence claim. Therefore, we affirm the trial court's judgment.

BACKGROUND

¶ 4. Keltgen is a developmentally disabled adult with autism and mild mental retardation. In August 1994, he began working at CDC, a non-profit corporation that operates a sheltered workshop pursuant to a contract with Eau Claire County under Wis. Stat. § 51.437. During his employment at CDC, Giles Smith, another sheltered employee, repeatedly sexually assaulted Keltgen in a work restroom. Smith had a history of sexually assaultive behavior of which CDC was aware.

¶ 5. Due to his disabilities, Keltgen has a limited ability to communicate and was not able to effectively inform others about the assaults. He repeatedly told his case manager he was being bothered in the bathroom and informed his mother, Paulet, he was being touched by others at work, but little more. During this time, Keltgen became withdrawn from daily life and physically aggressive toward Paulet. In addition, his weight dropped from 153 to 120 pounds. When Paulet reported these changes to Keltgen's caseworker and asked if anything could be happening to him at work, the caseworker told her no. The caseworker was unaware of Smith's history.

¶ 6. In August 1995, Paulet found a pair of Keltgen's underwear that had been torn. She asked Keltgen about them and he gave her a more detailed account of the assaults. Paulet contacted CDC, which informed the police of Keltgen's complaints. The police eventually identified Smith as the assaulter and arrested him.

¶ 7. In August 1997, St. Paul, CDC's liability carrier, sought a judgment declaring worker's compensation to be Keltgen's only remedy against CDC for the assaults. Keltgen counterclaimed against St. Paul and brought a third-party complaint alleging negligence against CDC and intentional assault against Smith. Keltgen also joined Venture and Wausau Insurance, CDC's worker's compensation carriers. He then brought an additional claim under Wis. Stat. § 51.61. The court allowed Paulet to intervene and she brought a negligence claim against CDC and its insurers.

¶ 8. The court stayed proceedings in August 1998, pending a determination by the Department of Workforce Development (DWD) whether the assaults were compensable under worker's compensation. In addition, the court ordered Keltgen's Wis. Stat. § 51.61 claims to be pled with more specificity and granted leave to file a new complaint. The court also questioned, but did not decide, whether Keltgen could maintain a worker's compensation action along with his § 51.61 claims.

¶ 9. In his amended complaint, Keltgen alleged CDC violated his rights to prompt and adequate treatment, rehabilitation and educational services appropriate for his condition under Wis. Stat. § 51.61(l)(f); to a humane psychological and physical environment within a hospital under § 51.61(l)(m); to reasonable protection of privacy under § 51.61(l)(s); and to be treated with respect and recognition of his dignity and individuality by employees of the treatment facility under § 51.61(l)(x). CDC and its insurers moved to dismiss, arguing the complaint failed to state a claim upon which relief could be granted because the specific §51.61 claims did not apply to Keltgen for a number of reasons.

¶ 10. Before the court heard the motion, Keltgen filed another amended complaint. Keltgen added a claim of negligence against CDC, alleging it had a dual persona in its relationship with him. After hearing the motion, the trial court dismissed all but Keltgen's claim under § 51.61(1)(f), concluding sheltered employment was an "educational service" and Keltgen had alleged CDC violated this right by failing to stop the assaults. The court did not address the negligence claim.

¶ 11. In March 2000, a DWD administrative law judge entered an order asserting jurisdiction and finding the assaults were compensable under worker's compensation. In November, the parties settled the worker's compensation claim for $10,000.

¶ 12. CDC and its insurers then filed for summary judgment, arguing CDC did not have a dual persona in its relationship with Keltgen and that he could not maintain his action under Wis. Stat. § 51.61(l)(f) because any recovery would duplicate his worker's compensation settlement. At the summary judgment motion hearing, Keltgen conceded he would only seek damages for pain and suffering under his remaining Wis. Stat. ch. 51 claim. The court agreed with CDC that these damages would duplicate those already paid under the worker's compensation settlement. It also concluded CDC did not have a dual persona and granted CDC and its insurers summary judgment. Keltgen appeals.

DISCUSSION

A. Application of Wis. Stat. § 51.61

¶ 13. We first address the parties' dispute whether Wis. Stat. § 51.61 applies to Keltgen. This statute only applies to a "patient," and therefore we must resolve whether Keltgen meets the statute's definition of this word. This is a question of statutory interpretation that we review de novo. State ex rel. Hensley v. Endicott, 2001 WI 105, ¶ 6, 245 Wis. 2d 607, 629 N.W.2d 686.

¶ 14. Wisconsin Stat. § 51.61(1) reads in relevant part:

Patients rights. (1) In this section, "patient" means any individual who is receiving services for mental illness, developmental disabilities, alcoholism or drug dependency, including any individual who is admitted to a treatment facility in accordance with this chapter or ch. 48 or 55 or who is detained, committed or placed under this chapter or ch. 48, 55, 971, 975 or 980, or who is transferred to a treatment facility under s. 51.35 (3) or 51.37 or who is receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437 or in a private treatment facility. "Patient" does not include persons committed under ch. 975 who are transferred to or residing in any state prison listed under s. 302.01. In private hospitals and in public general hospitals, "patient" includes any individual who is admitted for the primary purpose of treatment of mental illness, developmental disability, alcoholism or drug abuse but does not include an individual who receives treatment in a hospital emergency room nor an individual who receives treatment on an outpatient basis at those hospitals, unless the individual is otherwise covered under this subsection.

¶ 15. Keltgen argues he is a patient for the purposes of Wis. Stat. § 51.61 because he was receiving "services for developmental disabilities." He points to the definition of this phrase in § 51.437(1):

Developmental disabilities services. (1) Definition. In this section, "services" means specialized services or special adaptations of generic services directed toward the prevention and alleviation of a developmental disability or toward the social, personal, physical or economic habilitation or rehabilitation of an individual with such a disability, and includes diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, training, sheltered employment, protective and other social and socio-legal services, follow-along services and transportation services necessary to assure delivery of services to individuals with developmental disabilities. (Emphasis added.)

¶ 16. We agree with the trial court and conclude Keltgen is a "patient" under the language of Wis. Stat. § 51.437(1) and § 51.61(1). "Patient" includes people receiving services for developmental disabilities, and sheltered employment is one of these services.

¶ 17. Nonetheless, CDC argues we should not read Wis. Stat. § 51.61(1) so broadly. Instead, it contends the statute's list of four specific types of patients after the word "including" limits its application to those types of patients listed. Specifically, CDC argues these four types of patients are all either admitted, committed or transferred to treatment facilities and, because none of these actions could describe Keltgen's work at CDC, § 51.61(1) does not apply to him. CDC also points to legislative history supporting its limited interpretation. Finally, CDC contends it makes no sense to apply § 51.61 to Keltgen because the rights it affords do not make sense in Keltgen's situation. For instance, the statute gives patients the right to have visitors, send and receive mail, and engage in religious worship. CDC argues these rights make no sense in the sheltered employment context.

¶ 18. While we agree some of the rights listed in Wis. Stat. § 51.61(1) would seem to have little application to sheltered employment, the 'unambiguous language of the statutes requires us to conclude Keltgen was a "patient" for the purposes of § 51.61. Because of this unambiguous language, we may not resort to the statute's legislative history. See State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).

B. Application of the WCA's exclusive remedy provision

¶ 19. The parties next contest whether Keltgen's claims under Wis. Stat. § 51.61 are barred under the WCA's exclusive remedy provision, Wis. Stat. § 102.03(2). This statute makes worker's compensation the "exclusive remedy against the employer" when the conditions of liability under the WCA are found to exist. CDC and its insurers argue this provision bars Keltgen from pursuing his § 51.61 claims even if he meets the statute's definition of "patient." Keltgen contends the two statutes are intended to serve two separate purposes and, therefore, his claims are not barred by the exclusive recovery provision. We agree with Keltgen.

¶ 20. Keltgen relies on our supreme court's decision in Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997). There, the court concluded the exclusive remedy provision of Wis. Stat. § 102.03(2) did not bar a claim under the Wisconsin Fair Employment Act when both claims arose from the same facts. Id. at 407-08. In coming to this conclusion, the court examined the purposes of the two statutes and the harms they are intended to remedy. Id. at 398. The court concluded because the statutes are intended to rectify two completely different work-related harms — tort claims and discrimination — the exclusive remedy provision of the WCA did not bar an employee's claim under the WFEA when the facts giving rise to the claims are the same. Id. at 407-08.

¶ 21. Byers's methodology is helpful in determining whether the exclusive remedy provision of the WCA prohibits a claim under Wis. Stat. § 51.61. In interpreting the two statutes, it is our duty to harmonize them in a way that will give effect to the legislature's intent in enacting both statutes. Id. at 395. The statutes and their legislative history are silent as to any relationship they might have, so instead we must consider the purposes of the two statutes. Id.

¶ 22. Addressing the relationship of the WCA and the WFEA, the Byers court noted, "One does not expect these two statutes to conflict with each other, yet this case appears to raise just such a conflict." Id. at 394. This statement is equally applicable to the WCA and Wis. Stat. § 51.61. The WCA provides a broadly applicable method for compensating persons who suffer workplace-related physical and mental injuries. County of La Crosse v. WERC, 182 Wis. 2d 15, 29-31, 513 N.W.2d 579 (1994). It embodies a legislative compromise between employees and employers. Id. Employees give up their right to pursue tort claims against their employers for workplace-related injury in exchange for imposing strict liability on their employers. Id. Although the employers are strictly liable, the amount of compensation they must pay is statutorily limited. Id. Thus, employees are assured smaller but more certain recoveries than they might have in a tort action, and employers are freed from the risk of large and unpredictable damage awards. Byers, 208 Wis. 2d at 396.

¶ 23. Wisconsin Stat. § 51.61 is part of the State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act. The legislative policy of this Act is found in Wis. Stat. § 51.001:

(1) It is the policy of the state to assure the provision of a full range of treatment and rehabilitation services in the state for all mental disorders and developmental disabilities and for mental illness, alcoholism and other drug abuse. There shall be a unified system of prevention of such conditions and provision of services which will assure all people in need of care access to the least restrictive treatment alternative appropriate to their needs, and movement through all treatment components to assure continuity of care, within the limits of available state and federal funds and of county funds required to be appropriated to match state funds.
(2) To protect personal liberties, no person who can be treated adequately outside of a hospital, institution or other inpatient facility may be involuntarily treated in such a facility.

¶ 24. Wisconsin Stat. § 51.61 provides a number of rights for "patients" as that term is defined in the statute. Wis. Stat. § 51.61(1). The statute allows patients to recover compensatory damages, exemplary damages, attorney fees and costs for proving a violation of these rights. Wis. Stat. § 51.61(7)(a). If the person who violates these rights acts "willfully, knowingly and unlawfully," the patient may recover greater exemplary damages, and need not suffer actual damages. Wis. Stat. § 51.61(7)(b). The statute also provides criminal penalties for violating a patient's rights. Wis. Stat. § 51.61(7m).

¶ 25. The patients' rights provision of Wis. Stat. ch. 51 and the WCA are designed to remedy distinct harms. Wisconsin Stat. § 51.61 guarantees certain rights to- persons being treated for a variety of mental health disorders and provides an enforcement mechanism for these rights. The WCA, in contrast, serves to resolve tort claims between employers and employees. We conclude that in order to give effect to both of these statutes and their purposes, the exclusive remedy provision of the WCA does not bar a claim under Wis. Stat. §51.61 when the injuries result from the same set of facts. Although it seems unlikely these two sections will interact with any great frequency, when they do, a recovery under the WCA does not prohibit a cause of action under ch. 51.

C. Keltgen's specific Wis. Stat. § 51.61 claims

¶ 26. Keltgen next argues the trial court improperly dismissed most of his specific patient's rights claims. As noted, Keltgen alleged violations of his right to prompt and adequate treatment, rehabilitation, and educational services under Wis. Stat. § 51.61(l)(f); to a humane psychological and physical environment within the hospital facility under § 51.61(l)(m); to a reasonable protection of privacy under § 51.61(l)(s); and to be treated with respect and dignity by all employees of the treatment facility under § 51.61(l)(x). The trial court dismissed all but the § 51.61(l)(f) claim because it concluded Keltgen did not meet the requirements to assert the claims. Keltgen now argues the court erroneously dismissed his claims under § 51.61 (l)(s) and (x), and contends the court correctly determined he could pursue his § 51.61(1)(f) claim. He does not challenge the court's ruling on § 51.61(l)(m).

¶ 27. Looking first at the dismissed claims, we conclude the court correctly determined that Keltgen had not stated claims under Wis. Stat. § 51.61(l)(s) and (x). These sections read:

Patients rights. (1) ... Except as provided in sub. (2), each patient shall:
(s) Have reasonable protection of privacy in such matters as toileting and bathing.
(x) Have the right to be treated with respect and recognition of the patient's dignity and individuality by all employees of the treatment facility or community mental health program and by licensed, certified, registered or permitted providers of health care with whom the patient comes in contact.

¶ 28. The trial court dismissed these claims because it determined CDC did not violate Keltgen's privacy as contemplated in Wis. Stat. § 51.61(l)(s) and because CDC did not meet the definition of a treatment facility in § 51.61(l)(x). We agree.

¶ 29. A motion to dismiss for failure to state a claim tests whether the complaint is legally sufficient to state a claim for which relief may be granted. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 331, 565 N.W.2d 94 (1997). The legal sufficiency of the complaint is a question of law that this court reviews de novo. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445 (1999). In examining the legal sufficiency of the complaint, we assume that the facts alleged in the complaint are true, see id., and we are concerned only with the legal sufficiency of the complaint. See Lane v. Sharp Pkg. Sys., Inc., 2001 WI App 250, ¶ 15, 248 Wis. 2d 380, 635 N.W.2d 896. Thus, we will affirm an order dismissing a complaint for failure to state a claim if it appears to a certainty that no relief can be granted under any set of facts that the plaintiffs could prove in support of their allegations. See Quesenberry v. Milwaukee County, 106 Wis. 2d 685, 690, 317 N.W.2d 468 (1982).

¶ 30. In his complaint, Keltgen alleges the assaults occurred in the restroom where he had gone to use the toilet and, therefore, his right to privacy in the restroom was violated. We disagree. The assaults did not occur because CDC failed to protect Keltgen's privacy in the restroom; they occurred because CDC failed to protect his safety in the restroom. Keltgen argues his complaint states "sufficient facts to support an inference that an effective system to monitor Giles Smith would have protected Keltgen by keeping Giles Smith away from him in the restroom where the assaults occurred." Keltgen does not explain, however, how CDC's failure to implement this monitoring system or otherwise protect Keltgen violated his right to privacy. Keltgen places too much emphasis on the statute's use of the word "toileting" and the fact the assaults occurred in the restroom. As CDC points out, had Keltgen been assaulted in the stairway, under his argument, his rights under this section would not have been violated. CDC did not violate Keltgen's right to privacy under Wis. Stat. § 51.61(l)(s) when it failed to protect him from the assaults.

¶ 31. Nor does Keltgen's complaint state a claim under Wis. Stat. § 51.61(l)(x). This section gives patients at treatment facilities the right to "be treated with respect and recognition of the patient's dignity and individuality" by the facility's employees. The trial court dismissed this claim because it concluded CDC was not a treatment facility. We agree.

¶ 32. Wisconsin Stat. § 51.01(19) defines "treatment facility" as "any publicly or privately operated facility or unit thereof providing treatment... of.. . developmentally disabled persons." Under Wis. Stat. § 51.01(17), treatment "means those psychological, educational, social, chemical, medical or somatic techniques designed to bring about rehabilitation of a. . . developmentally disabled person." The trial court concluded Keltgen's sheltered employment at CDC did not constitute rehabilitation, and therefore, CDC was not a treatment facility and Keltgen could not bring the § 51.61(l)(x) claim.

¶ 33. Rehabilitation includes techniques that "ameliorate impairments and facilitate an individual's capability to function." In re Athans, 107 Wis. 2d 331, 336, 320 N.W.2d 30 (Ct. App. 1982). Rehabilitation is not the same as habilitation, which includes services that "assist an impaired person's ability to live in the community." Id. Habilitation is a concept frequently associated with the long-term care of the developmentally disabled, and is used in this sense in Wis. Stat. § 51.437(1). In re C.J., 120 Wis. 2d 355, 360 n.6, 354 N.W.2d 219 (Ct. App. 1984). A practical definition of habilitation would include eating, dressing, hygiene, minimum social skills and such other things that facilitate personal maintenance and functioning. Id. at 360. In C.J., we noted a list of activities in a Department of Health, Education, and Welfare definition of habilitation included sheltered employment, and that this listing reinforced the concept of habilitation we used there. See id. at 360 n.5. Based on this analysis, we conclude Keltgen's sheltered employment constituted habilitation rather than rehabilitation and therefore CDC cannot be considered a treatment center for the purposes of Wis. Stat. § 51.61(l)(x).

¶ 34. We agree with the trial court's decision that Keltgen's complaint stated a claim under Wis. Stat. § 51.61 (l)(f). This section gives patients the right to "receive prompt and adequate treatment, rehabilitation and educational services appropriate for his or her condition." The trial court concluded Keltgen's allegation that his program at CDC intended to "upgrade the employment skills of all participants" constituted an educational program. We agree. Upgrading the employment skills of an employee certainly involves education.

¶ 35. CDC argues the legislature must have intended different definitions for "sheltered employment" and "educational services" because it chose to use two separate phrases. This, however, conflicts with the definition of "sheltered employment services" found in Wis. Admin. Code § HFS 61.40, which reads, in part, "Sheltered employment programs shall include sheltered employment services or work activity services and may include the additional developmental disabilities services of.. . education." Sheltered employment may include educational programs. The legislature did not intend the definitions to be mutually exclusive and Keltgen's complaint states a claim that CDC deprived him of his right to prompt and adequate educational services.

D. Double recovery

¶ 36. We next address Keltgen's argument the trial court erred when it determined any recovery for his remaining Wis. Stat. ch. 51 claim would duplicate the damages he had received for his worker's compensation settlement. Specifically, Keltgen argues the WCA only compensates for economic injuries and he is seeking recovery for posttraumatic stress unrelated to his economic injuries. Therefore, Keltgen argues, there is no chance of a double recovery and the trial court erred when it granted CDC summary judgment. We disagree.

¶ 37. We review the grant or denial of a summary judgment de novo, and we apply the same standard as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 38. Keltgen contends any recovery for pain and suffering he would have under his Wis. Stat. § 51.61(l)(f) claim would not duplicate the WCA recovery because the WCA award only compensates his pain and suffering related to his economic injuries. He relies on our supreme court's statement that "[n]o allowance can be made in a compensation award for physical or mental suffering, however acute, which does not interfere with earning capacity." Shymanski v. Industrial Comm'n, 274 Wis. 307, 314, 79 N.W.2d 640 (1956). Keltgen argues his WCA recovery only compensates him for the pain and suffering he experienced as a result of his economic harms and he should therefore be able to recover for his other pain and suffering under the § 51.61(l)(f) claim.

¶ 39. We conclude, however, that Keltgen's pain and suffering resulting from the assaults was compensated by his WCA recovery and, therefore, further recovery would be duplicative. "Pain and suffering as a result of a work-related injury clearly flow from that injury." Threshermens Mut. Ins. Co. v. Page, 217 Wis. 2d 451, 467, 577 N.W.2d 335 (1998). In Page, our supreme court determined pain and suffering was compensable through WCA recoveries, despite not being specifically enumerated by the Act. Id. The court noted the degree of pain sustained by an injured worker "is certainly a factor in the determination of the level of disability and thus the disability payments accorded the worker." Id. at 467-68.

¶ 40. Further, the definition of "injury" in Wis. Stat. § 102.01(2)(c) includes "mental or physical harm." Keltgen is claiming he suffered posttraumatic stress as a result of the attacks, which resulted in weight loss and behavioral and mood changes. We conclude this meets the definition of mental harm. In Swiss Colony, Inc. v. ILHR Dept., 72 Wis. 2d 46, 240 N.W.2d 128 (1976), the supreme court concluded an employee's claims for emotional distress, insomnia, exhaustion, depression and weight loss were within a WCA recovery. Id. at 51. The employee suffered a mental breakdown as a result of her increasing workload, long hours, and being subjected to a critical and berating attitude of a co-worker. Id. at 51-53. The court upheld the department's finding that these injuries were caused by the work stresses and compensable by the WCA.

¶ 41. Similarly, Keltgen's posttraumatic stress claims are within the scope of compensable harms under the WCA. While the causes of the employee's claim in Swiss Colony were her working conditions as opposed to sexual assault, it is undisputed that the assaults were an "accident" for purposes of the WCA. See Wis. Stat. § 102.01(2)(c); Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253, 264, 468 N.W.2d 1 (1991) (an intentionally inflicted injury, unexpected and unforeseen by the injured party is an accident for purposes of the WCA). Keltgen's posttraumatic stress arose because of these assaults and was compensated by his worker's compensation settlement.

¶ 42. Therefore, allowing Keltgen to recover for pain and suffering under Wis. Stat. § 51.61(l)(f) would result in a double recovery for the pain and suffering already compensated by his WCA settlement. While we acknowledge Keltgen's argument that the WCA recovery has not made him whole, we must reject this claim because Keltgen agreed to the settlement. This recovery compensated him for the pain and suffering that arose as the result of the attacks, and any further claim would lead to a double recovery.

E. Dual persona

¶ 43. Finally, we reject Keltgen's claim that CDC had a dual persona as Keltgen's employer and health care provider and, therefore, he should be allowed to maintain a negligence claim against CDC. The "dual persona" doctrine is an exception to the exclusive remedy provision of the WCA. Henning v. General Motors Ass'y Div., 143 Wis. 2d 1, 7, 419 N.W.2d 551 (1988). Under this doctrine, " '[a]n employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.'" Id. at 15. The dual persona exists where the duality is "firmly entrenched in common law or equity" or where the duality is one created by modern statute. Id. at 19. A separate capacity or theory of liability is not sufficient to establish a dual persona. Schweiner v. Hartford Acc. & Indem. Co., 120 Wis. 2d 344, 352-53, 354 N.W.2d 767 (Ct. App. 1984).

¶ 44. Keltgen argues because CDC acted both as his employer and as his developmentally disabled service provider, it possessed a dual persona. He contends the dual persona is created by statute, specifically the statutes establishing the statewide system of services for the developmentally disabled; those allowing counties to provide the services through contracts with private entities; and the wage law exemptions provided to these entities. Keltgen maintains CDC's two roles are so different that they amount to a dual persona. We disagree.

¶ 45. Under the dual persona doctrine, the employer's second role must be so unrelated to its role as an employer that it constitutes a separate legal person. Henning, 143 Wis. 2d at 15. Here, CDC's roles are related. In fact, they appear so intertwined it would be difficult to tell what responsibilities each role was obligated to meet for Keltgen. His sheltered employment at CDC was the services he was receiving as a developmentally disabled person. The two roles CDC played are so related they amount to one role. CDC did not have a dual persona in its relationship with Kelt-gen.

By the Court. — Judgment affirmed.

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

       Venture and Wausau Insurance also sought judgment declaring their policies did not cover Curtis's Wis. Stat. § 51.61 claims. The court denied this motion, and Venture and Wausau Insurance cross-appeal. Because we affirm the trial court's judgment, however, we need not address the cross-appeal. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

       Only Curtis's claims are the subject of this appeal.

       In a note to Wis. Admin. Code § HFS 94.04, Notification of Rights, the Department of Health and Family Services stated,
      Note: The statute does not make distinctions among types of treatment facilities when it comes to protecting patients' rights. Some rights may he more applicable to patients in inpatient facilities than to patients in less restrictive facilities such as sheltered workshops or outpatient clinics. When informing patients of their rights, facility directors may emphasize those rights that are most applicable to the particular facility, program or services but s. 1.61, Stats., requires notification that other rights exist and may, under some circumstances, apply in a given situation. (Emphasis added.)

       Curtis only alleged CDC was a treatment facility.

       At the time Swiss Colony, Inc. v ILHR Dept., 72 Wis. 2d 46, 240 N.W.2d 128 (1976), was decided, the mental injury was only compensable if it "resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience." Id. at 51. Although this language has since been removed, our reliance on Swiss Colony is for the purpose of demonstrating the types of injuries compensable by the WCA. We conclude Curtis's claims axe within the current definition of injury as well.


source: Caselaw Access Project

author: WEDEMEYER, P.J.

license: Public Domain

text:
    Society Insurance, Plaintiff-Respondent, v. Capitol Indemnity Corporation, Defendant-Appellant.
    Court of Appeals

      No. 02-1856.

      Submitted on briefs December 3, 2002.

    Decided February 4, 2003.

    2003 WI App 61
    (Also reported in 659 N.W.2d 875.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Allen M. Ratkowski and Jeaneen J Behring of Piper & Schmidt, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Arthur P. Simpson of Simpson & Deardorff, S.C., Milwaukee.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   WEDEMEYER, P.J.

¶ 1. Capitol Indemnity Corporation appeals from a summary judgment granted in favor of Society Insurance in an insurance coverage dispute. Capitol claims the trial court erred when it found Society was entitled to contribution from Capitol for a claim Society paid for property damage to an insured following a fire at the insured premises. Because the two insurance policies did not insure the same interest or the same insureds, contribution is not appropriate, and we reverse the judgment and remand to the trial court with directions to grant judgment in favor of Capitol.

BACKGROUND

¶ 2. The following facts are undisputed. On October 13, 2000, a fire occurred at the Broadway Baby, a restaurant located at 7155 North 43rd Street in Milwaukee. The restaurant was operated by John Bohan, who leased the premises from the owner, Thomas Beckman. As a part of the lease agreement, Bohan was responsible for obtaining property damage insurance for the property, which he did. Bohan procured a policy of businessowner's property and liability insurance from Society, which went into effect on January 23, 2000. On October 11, 2000, the policy was amended. Among other items, the amendment named Beckman as an "additional insured" — per an attached schedule. The attached schedule provided:

A. The following is added to Paragraph C. WHO IS AN INSURED in the Businessowners Liability Coverage Form:
4. The person or organization shown in the Schedule is also an insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule.

¶ 3. Beckman also obtained insurance for the North 43rd Street property from Capitol. Under the Capitol policy, Beckman was the only named insured and the business description was for "Lessor's Risk."

¶ 4. After the October 13, 2000 fire, Bohan made a claim under his policy with Society. Society paid $41,071.60 as compensation for damages to the property. Society then sought contribution from Capitol. Capitol denied that it owed Society any contribution for the claim.

¶ 5. Beckman never filed a claim for the loss with Capitol. In fact, Beckman requested that Capitol cancel the insurance policy retroactive to the day before the fire occurred. Capitol complied with this request. Society then filed a declaratory judgment action against Capitol asking the court to declare that Capitol's policy also applied to the loss incurred at the property and seeking contribution. Both parties filed motions seeking summary judgment in their favor.

¶ 6. The trial court granted Society's motion and denied Capitol's motion. The trial court found that retroactive cancellation after a loss has occurred violates public policy in Wisconsin. The trial court also found that the two policies covered the same interest, the same insured, and the same loss. As a result, the trial court ordered Capitol to pay Society contribution on a pro rata basis, in the amount of $16,187.51. Judgment was entered. Capitol now appeals.

DISCUSSION

¶ 7. The issue in this case is one of first impression: whether an insurer for an owner/lessor of property is liable to pay contribution to the lessee's insurer for damages occurring to the property. This case was resolved on cross-motions for summary judgment.

¶ 8. We review orders for summary judgments independently, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). The interpretation of an insurance contract presents a question of law for our independent review. Tara N. v. Economy Fire & Cas. Ins. Co., 197 Wis. 2d 77, 84, 540 N.W.2d 26 (Ct. App. 1995). We interpret an insurance policy using the same rules of construction that are applied to other contracts. Allstate Ins. Co. v. Gifford, 178 Wis. 2d 341, 346, 504 N.W.2d 370 (Ct. App. 1993). "The policy language, as the agreed-upon articulation of the bargain reached between the parties, is dispositive to the extent it is plain and unambiguous." Id. If the terms of an insurance contract are plain on their face, the policy must not be rewritten by construction. Id. When the terms of the policy are unambiguous, they should be applied according to their everyday meaning, except where the policy itself provides an application definition. Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 736, 351 N.W.2d 156 (1984).

¶ 9. Capitol claims that the trial court erred in ruling that it should pay contribution to Society for a portion of the compensation Society expended for damages caused by the fire. Capitol contends that it does not owe contribution for three reasons: (1) the insurance policy was retroactively cancelled by Beckman, and, as a result, was not in effect on the date of the fire; (2) Capitol's insurance policy and Society's insurance policy do not cover the same interest; and (3) the two insurance policies do not cover the same insured. Capitol's first contention is incorrect, but its second and third theories prevail.

A. Retroactive Cancellation.

¶ 10. First, Capitol contends that its policy was not in effect on the date of loss because Beckman retroactively cancelled the policy. Society argues, and the trial court agreed, that retroactive cancellation here is contrary to public policy in this state. We agree.

¶ 11. Although Capitol correctly argues that parties to a contract are free to modify the terms of the contract, they may not do so under the circumstances presented here. See generally Ciokewicz v. Lynn Mut. Fire Ins. Co., 212 Wis. 44, 248 N.W. 778 (1933). Our supreme court has already rejected an attempt to rescind a fire insurance policy after a known loss. Id. at 48. "The rights of the parties bec[o]me fixed when the loss occur[s]." Id. Here, Beckman attempted to retroactively cancel his policy with Capitol after the loss occurred. Beckman stated in his March 14, 2002 affidavit that he requested the retroactive cancellation because he did not want Capitol to pay on this loss. Once a loss occurs, the parties may not retroactively cancel a policy which potentially covers that loss. See id. Capitol attempts to distinguish Ciokewicz because the insured in Ciokewicz changed his mind about cancellation, at first requesting cancellation and later indicating he did not want the policy cancelled. Id. at 48-49. We cannot hold that Beckman's continuing desire to cancel the policy distinguishes this matter from Ciokewicz.

¶ 12. Our supreme court clearly indicated that the rights of the parties become fixed when the loss occurs. "An agreement of the parties and a return of a pro rata [] premium will not exempt an insurer from liability for loss which had previously occurred while the policy was in force." Id. Our supreme court reached this conclusion on sound fundamental principles. Allowing retroactive cancellation after a loss has occurred is contrary to good public policy and could lead to inequitable results. We decline to depart from the longstanding law established in Ciokewicz. Beckman's retroactive cancellation here was ineffective; therefore, we reject his contention that the Capitol policy was not in effect at the time of the fire loss.

B. Identity of Insureds.

¶ 13. Contribution is an equitable remedy that is available between insurance companies that are equally liable for the discharge of common obligations. See Reliance Ins. Co. v. Liberty Mut. Fire Ins. Co., 13 F.3d 982, 983 (6th Cir. 1994). That is, contribution may be available when there is "double coverage" for the loss. Id. Double coverage exists only when both policies cover the same property, and the same interest in the property, against the same risk for the same insured. Id.

¶ 14. Both parties agree that contribution is available only under those circumstances. They disagree, however, as to whether those circumstances are present in this case. Capitol argues that the two polices covered different insurable interests and different insureds; therefore, it does not owe contribution to Society. Capitol apparently concedes that the two insurance, policies cover the same property, i.e., the building/restaurant located at 7155 North 43rd Street.

¶ 15. Capitol's policy insured Beckman, who had an insurable interest in the property as owner, while Society's policy insured Bohan, who had an insurable interest as lessee/operator of the property. Capitol maintains, therefore, that there is no identity of insureds. Society points out, however, that its policy names Beckman as an "additional insured," for his lessor's interest in the property. Society suggests that on this basis there is an identity of insureds because both policies name Beckman as an insured for his lessor's interest. Capitol concedes that Beckman was named as an additional insured in Society's policy, but responds that an endorsement makes Beckman an insured only as to liability under Society's policy — not an insured for the purposes of property damage.

¶ 16. The endorsement referred to involved a mid-term change to the policy, which added Beckman as an additional named insured. Capitol contends that the amendment added Beckman as an additional insured only under the liability coverage of the policy and not under the property damage portion of the policy. Society responds that the amendment added Beckman under both the property damage and liability coverages, but simply placed a limitation on the liability coverage available to Beckman under the policy. Society argues that the amendment reduced liability coverage, but did not affect property coverage.

¶ 17. We conclude that Society's interpretation of the insurance provisions here is not reasonable. The record reflects that Beckman was added as an additional insured "per attached schedule." The schedule provides:

A. The following is added to Paragraph C. WHO IS AN INSURED in the Businessowners Liability Coverage Form:
4. The person or organization shown in the Schedule is also an insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule.

¶ 18. There is no indication within the terms of the insurance policy that Beckman was added as an additional insured "for any and all purposes" or both for the purposes of property coverage and liability coverage. Thus, based on our review of the policies at issue, we conclude that there was not an identity of insureds. Capitol's policy provided coverage solely to Beckman. Society's policy provided property damage coverage solely to Bohan, and liability coverage to both Bohan and Beckman. Because this case involved a claim under the property damage provision of Society's policy, there was no identity of insureds and contribution is not available.

C. Insurable Interest.

¶ 19. Capitol further contends that the two insurance policies insure different interests and, therefore, contribution is not appropriate in this case. Specifically, it points out that the interest insured by Capitol is an owner's interest, while the interest insured by Society is a lessee's interest. Capitol relies on St. Paul Fire and Marine Ins. Co. v. Protection Mut. Ins. Co., 607 F. Supp. 388 (S.D.N.Y. 1985). The landlord in St. Paul owned commercial real estate on the west side of Manhattan and leased the premises to the tenant. Id. at 389. In that case, the court held that the insured's interests were separate and distinct because the landlord's interest was in fee, while the tenant's interest was a leasehold. Id. at 391.

¶ 20. We find that case persuasive. Moreover, the majority of cases which have addressed this or similar issues agree that double coverage does not exist when the insurable interests are separate and distinct. See M.F.A. Mut. Ins. Co. v. Gulf Ins. Co., 445 S.W.2d 829, 833 (Mo. 1969) (building insurer was not entitled to contribution from contractor's insurer for loss occurring during construction of a building because the risks and interests were not identical); Mission Nat'l Ins. Co. v. Hartford Fire Ins. Co., 702 F. Supp. 543, 545 (E.D. Pa. 1989) (because the policies covered different insureds and protect different insurable interests, there was no right to contribution); McCoy v. Continental Ins. Co., 40 N.W.2d 146, 149-50 (Mich. 1949) (vendor's policy and vendee's policy "were on the same property and against the same risks but on different interest and payable to different parties"); and Lititz Mut. Ins. Co. v. Lengacher, 248 F.2d 850, 854 (7th Cir. 1957) (property owner and building contractor held separate and distinct interests in the same property and therefore may not prorate the loss).

¶ 21. The trial court struggled with the suggestion that the owner and the lessee's interests were separate and distinct because the sole occupant of the building was the restaurant operated by Bohan. Thus, the trial court could not distinguish between the interest of the owner and the interest of the operator, which it viewed as the same — protecting the property against fire loss. The trial court's misunderstanding may have arisen in part because of its inadvertent practice of interchanging the terms "interest" and "risk." As noted, for contribution to apply, the insurance policies must cover the same property, the same insured, the same risk, and the same interest. Couch on Insurance 3d § 219:14 (1999). Interest and risk are sometimes merged into the same concept, rather than addressed separately. This appears to be what happened in the trial court — the trial court initially indicated that both policies insured the same risk and later concluded that therefore the policies covered the same interest. The trial court did not address risk and interest as separate concepts. The concept of risk involves the type of damage insured against — such as fire, calamity, catastrophe or liability. See generally 7 Couch on Insurance § 101.3. Interest, on the other hand, addresses how the insured is connected to the property — such as fee simple versus leasehold, or seller versus buyer versus builder. See, e.g., St. Paul Fire & Marine Ins., 607 F. Supp. at 391. The insurable interest — or stake — the insured has in the property is distinct from the type of risk.

¶ 22. Here, the trial court was partially correct in that, under the circumstances of this case, the two insurance policies provided coverage for the same risk —both provided fire loss coverage for the property at issue. Nevertheless, the insurance policies each provided coverage for separate and distinct insurable interests. Society's policy covered Bohan's insurable interest as operator of the restaurant located in the building. Capitol's policy covered Beckman's interest as owner of the building, which housed the restaurant.

¶ 23. As the St. Paul court noted, the insurable interests between landlord and tenant are distinct. This is so because a landlord and his lessee have different and potentially adverse interests in the property. Peerless Ins. Co. v. Bailey Mortgage Co., 345 F.2d 14, 18 (5th Cir. 1965). Although it may not always be easy to articulate the different interests, they are clearly not the same. The owner benefits both as the title-holder to the property and as the landlord. The operator benefits solely from the proceeds generated by the business operated in the building. If the property is destroyed, the owner loses both the rental income and the value of the real estate, whereas the tenant loses income from the business, goodwill and other items related to the business.

CONCLUSION

¶ 24. In sum, we conclude that the trial court erred in entering judgment in favor of Society and ordering Capitol to pay contribution. Rather, the trial court should have granted summary judgment to Capitol because no contribution claim accrued under the facts and circumstances presented here — there was neither an identity of insureds nor insurable interests. Accordingly, we reverse the judgment and remand the matter to the trial court with directions to enter judgment in favor of Capitol.

By the Court. — Judgment reversed and cause remanded with directions.

       Society asks us to affirm the trial court on the basis that Wis. Stat. § 631.43(1) creates a contribution action. We decline the invitation. Section 631.43(1) does not apply here. This statute is intended to protect an insured "[w]hen 2 or more policies promise to indemnify an insured against the same loss." Id. That is not the situation presented in this contribution action. The statute does not apply to disputes between insurers in a proration action. State Farm Mut. Auto. Ins. Co. v. Continental Cas. Co., 174 Wis. 2d 434, 439, 498 N.W.2d 247 (Ct. App. 1993). Moreover, the dispute about the "other insurance" clauses within Society's and Capitol's policies does not need to be addressed based on our disposition of this case.


author: FINE, J.

text:
    TOPS Club, Inc., Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.
    Court of Appeals

      No. 02-1904.

      Submitted on briefs January 7, 2003.

    Decided February 4, 2003.

    2003 WI App 62
    (Also reported in 659 N.W.2d 484.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Victor Reckmeyer, II, of Donner & Dormer, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Gregg C. Hagopian, assistant city attorney, Milwaukee.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 4-22-03.

   FINE, J.

¶ 1. TOPS Club, Inc., appeals a circuit-court order dismissing its declaratory-judgment complaint against the City of Milwaukee. TOPS's complaint alleged that it is "an educational, charitable and benevolent organization that provides members with education, motivation and group support in attaining and maintaining their physician-prescribed weight goals." It sought a declaration that it is, accordingly, exempt from City taxation by Wis. Stat. § 70.11(4), which, inter alia, exempts from "general property taxes . . . [p]roperty owned and used exclusively by. . . educational or benevolent associations." The circuit court dismissed the complaint because under Wis. Stat. § 74.35(2m) such declaratory-judgment actions are not permitted. Our review of the legal issue involving the interpretation and application of the statute is de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-365, 560 N.W.2d 315, 317 (Ct. App. 1997). We agree with the circuit court's well-reasoned analysis and affirm.

¶ 2. According to TOPS's complaint, which we accept as true in analyzing whether it states a legally cognizable claim, see Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660, 664 (1979), TOPS "submitted a Property Tax Exemption Request to the City of Milwaukee requesting that [its] Property be treated as tax-exempt pursuant to 70.11 Wis. Stats." for the 2001 tax year. When the City's Assessor denied TOPS's request, TOPS paid the taxes "under protest." TOPS admits that it did not follow the procedure mandated by Wis. Stat. § 74.35, even though the Assessor's letter denying the requested exemption alerted TOPS that if it wanted "to dispute this determination, you must follow the procedures set forth in Wis. Stat. 74.35."

¶ 3. Wisconsin Stat. § 74.35(2m) provides:

Exclusive ProceduRE. A claim that property is exempt, other than a claim that property is exempt under s. 70.11 (21) (a) or (27), may be made only in an action under this section. Such a claim may not he made by means of an action under s. 74.33 or an action for a declaratory judgment under s. 806.04.

TOPS's contention that its property is exempt from taxation is not premised on Wis. Stat. §§ 70.11(21)(a) or 70.11(27). Rather, as noted, it claims that it is both an educational and benevolent organization and, therefore, its property is exempt under Wis. Stat. § 70.11(4). Thus, it does not fall under the exceptions to the exclusive procedure mandated by § 74.35(2m), the main aspect of which is set out in Wis. Stat. § 74.35(2).

¶ 4. Although, as we have seen, TOPS admits that it did not follow what Wis. Stat. § 74.35(2m) proclaims is the "exclusive procedure" to assert a claim that property is exempt from taxation by virtue of Wis. Stat. § 70.11(4), TOPS argues that it did not have to comply with the procedure mandated by § 74.35(2m) because the City's 2001 tax-year levy was void ab initio and thus a declaratory judgment was appropriate. TOPS cites common-law Wisconsin decisions that hold that taxation of an entity exempted from tax liability is void ab initio, see, e.g., Hermann v. Town of Delavan, 215 Wis. 2d 370, 389-391, 572 N.W.2d 855, 862-863 (1998) (collecting cases), and that declaratory judgment is an appropriate mechanism to vindicate the exemption because "litigation over whether property is exempt from taxation is not generally subject to limitations which may apply to other property tax disputes," Friendship Village of Greater Milwaukee, Inc. v. City of Milwaukee, 181 Wis. 2d 207, 216-218, 511 N.W.2d 345, 349-350 (Ct. App. 1993).

¶ 5. In Friendship Village, the City argued that Wis. Stat. § 74.35(2)(a), which provided then as it does now that "[a] person aggrieved by the levy and collection of an unlawful tax assessed against his or her property may file a claim to recover the unlawful tax against the taxation district which collected the tax," precluded Friendship Village's declaratory-judgment action because, according to the City, the subsection made Wis. Stat. § 74.35 the exclusive way for Friendship Village to challenge a tax from which Friendship Village claimed it was exempt. Id., 181 Wis. 2d at 218, 511 N.W.2d at 350. We disagreed, noting, as seen above, that the purported limitation in § 74.35(2)(a) did not apply to questions of whether property was exempt from taxation. Ibid. But the situation here is different than it was in Friendship Village. Here, TOPS not only faces § 74.35(2)(a), it also runs up against Wis. Stat. § 74.35(2m), which was enacted after Friendship Village was decided, 1997 Wis. Act 237, § 311m, and was, based on the uncontroverted legislative-history material provided to us by the City, enacted with the specific legislative intent to overrule Friendship Village's holding that the denial of tax exemption could be challenged via a declaratory-judgment action. Indeed, a more clear and direct command than "[s]uch a claim may not be made by means of an action under s. 74.33 or an action for a declaratory judgment under s. 806.04," Wis. Stat. § 74.35(2m), is hard to imagine.

¶ 6. "Absent a constitutional infirmity, courts must apply statutes as they are written, unless to do so would lead to an absurd result that did not reflect the legislature's intent." State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309, 311 (Ct. App. 1993), aff'd, 191 Wis. 2d 393, 528 N.W.2d 417 (1995). TOPS does not suggest that Wis. Stat. § 74.35(2m) is unconstitutional. The section is not ambiguous; it trumps the common-law cases it has overruled. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 475, 464 N.W.2d 654, 659 (1991) (statute supplants common-law doctrine when that is what legislature intended).

By the Court. — Order affirmed.

       Wisconsin Stat. § 74.35(2) provides:
      Claim against taxation district, (a) A person aggrieved by the levy and collection of an unlawful tax assessed against his or her property may file a claim to recover the unlawful tax against the taxation district which collected the tax.
      (b) A claim filed under this section shall meet all of the following conditions:
      1. Be in writing.
      2. State the alleged circumstances giving rise to the claim, including the basis for the claim as specified in s. 74.33 (1) (a) to (e).
      3. State as accurately as possible the amount of the claim.
      4. Be signed by the claimant or his or her agent.
      5. Be served on the clerk of the taxation district in the manner prescribed in s. 801.11 (4).

       Wisconsin Stat. § 74.35(5)(a) requires, except for taxes mistakenly paid to the "wrong taxation district," Wis. Stat. § 74.35(5)(b), that "a claim under this section shall be filed by January 31 of the year in which the tax is payable." TOPS argues that enforcement of Wis. Stat. § 74.35(2m) would lead to what it calls the "absurd result" of forcing taxpayers to "strictly comply with a January 31 deadline for recovering payment on tax exempt property." Other than pointing out that an entity might purchase a tax-exempt property after expiration of the deadline (in such a case, of course, the value of the tax exemption could be factored into the purchase price if, for some reason, the seller did not claim the exemption timely), TOPS does not tell us how an allegedly tax-exempt entity is prejudiced by having to follow the procedures mandated by § 74.35(2m), rather than by filing a declaratory-judgment action, as it did here. Vesely v. Security First Nat'l Bank of Sheboygan Trust Dep't, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985) (we will not address undeveloped arguments).


text:
    Robert Tomaszewski, Plaintiff-Respondent, v. David Giera, Defendant-Appellant.
    Court of Appeals

      No. 02-2409.

      Submitted on briefs January 6, 2003.

    Decided February 4, 2003.

    2003 WI App 65
    (Also reported in 659 N.W.2d 882.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael D. Shiffler and William A. Grünewald of Jensen, Scott & Grünewald, S.C. of Medford.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Charles S. Senn of Charles Senn Law Office of Thorp.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. David Giera appeals a judgment ordering him to pay Robert Tomaszewski $1,998 for his share of a fence Tomaszewski built on the border of their adjacent lands pursuant to Wis. Stat. § 90.10. Tomaszewski sued Giera to recover his cost of building Giera's portion of the fence after the town fence viewers determined Giera owed significantly less than what Tomaszewski actually paid to build the fence. Giera moved for summary judgment arguing the remedy provided in the fence viewing statute, Wis. Stat. § 90.11, was the only remedy available to Tomaszewski and that the fence viewers' determination could not be appealed. The court denied this motion. After a bench trial, Giera renewed his objection, which the court again denied, and entered judgment for Tomaszewski.

¶ 2. On appeal, Giera makes the same objections. We determine the remedy in the fence viewers' statute is the exclusive remedy available to Tomaszewski and that the fence viewers' determination is subject to common law certiorari review. Therefore, we reverse and remand to the trial court to conduct a certiorari review of the fence viewers' determination.

BACKGROUND

¶ 3. Giera and Tomaszewski are adjoining landowners in the Town of Maplehurst in Taylor County. Giera is also the town chairman. By 2001, the fence along their property line was in disrepair, and Tomasze-wski approached Giera about building a new fence. Although Giera told Tomaszewski he did not object to a new fence, he said he was concerned about the location of the halfway point because Tomaszewski had recently sold two parcels of his land, reducing their common property line to 2,200 feet.

¶ 4. In August 2001, Tomaszewski built what he believed was his share of the fence. He sent a letter to Giera informing him of his duty to build his share of the fence. Tomaszewski then requested Maplehurst's fence viewers, Anthony Friedenfels and Stanley Halida, to view the fence. The men viewed the property and determined Giera had not built his share.

¶ 5. Approximately thirty days after the viewing, Tomaszewski hired Paul Rauter to build Giera's portion of the fence. Rauter charged Tomaszewski $2,400. Tomaszewski then submitted the bill to the fence viewers and Giera in an attempt to collect. At the next town board meeting, Giera told Friedenfels and Halida that he did not believe Tomaszewski had built his own share of the fence to the proper midpoint and also that he thought Rauter's bill was too high.

¶ 6. Friedenfels and Halida then went to view the fence a second time. They determined the fence was not built to the proper midpoint of the boundary. Instead, they concluded each man should have been responsible for 1,100 feet. In addition, they determined Giera only owed Tomaszewski $950 for the fence, based on fence material prices at a local hardware store and thirty-two hours labor at $15 an hour.

¶ 7. Giera offered to pay Tomaszewski $950. To-maszewski, however, filed a small claims action against Giera to recover his actual costs in building the fence. Giera moved for summary judgment. He contended the remedy provided in Wis. Stat. § 90.11, which allowed the complaining party to receive payment from the town in the event of a refusal to pay, was the exclusive remedy. In addition, he argued the statute provided no right to appeal the fence viewers' determination to the circuit court. The court denied Giera's motion.

¶ 8. After a bench trial in July 2002, the court found Giera was responsible for 1,100 feet of the fence. In addition, the court determined Rauter's fee was the fair market value for the fence and ordered Giera to pay Tomaszewski $1,998. Giera appeals.

DISCUSSION

¶ 9. Giera raises the same objections he made in his motion for summary judgment. Resolution of these issues requires an interpretation of the relevant fence viewing statutes, Wis. Stat. §§ 90.10 and 90.11. Statutory interpretation presents a question of law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998).

¶ 10. Wisconsin Stat. §§ 90.10 and 90.11 read:

90.10 Compulsory repair of fence. If any person neglects to repair or rebuild any partition fence that by law that person is required to maintain, the aggrieved party may complain to 2 or more fence viewers of the town, who, after giving notice as provided in s. 90.07, shall examine the fence. If the fence viewers determine that the fence is insufficient, they shall inform the delinquent party of the insufficiency and direct the delinquent party to repair or rebuild the fence within a time that the fence viewers determine is reasonable. If the fence is not repaired or rebuilt within the time fixed by the fence viewers, the complainant may repair or rebuild the fence and recover the expense of repairing or rebuilding the fence as provided under s. 90.11.
90.11 Cost of repairs. (l)(a) Whenever any owner or occupant of land has built, repaired or rebuilt any fence, pursuant to the provisions of this chapter, that the adjoining owner or occupant has been lawfully directed by fence viewers to build, repair or rebuild but has failed to do within the time prescribed, the owner or occupant who built, repaired or rebuilt the fence may complain to any 2 or more fence viewers of the town.
(b) The fence viewers complained to under par. (a) shall, after having given notice to the defaulting adjoining owner or occupant as provided in s. 90.07, examine the fence and ascertain the expense of building, repairing or rebuilding the fence. If the fence viewers adjudge the fence sufficient they shall give to the complaining party a certificate under their hands of their decision and of the amount of the expense of building, repairing or rebuilding the fence and of the fees of the fence viewers.
(c) Upon receipt of the fence viewers' certificate, the complaining party may demand the amount of the expense determined by the fence viewers, together with the fence viewers' fees, from the defaulting, adjoining owner or occupant: If the adjoining owner or occupant fails to pay the expenses and fees for one month after the complaining party has demanded payment, the amount of expenses and fees together with interest at the rate of 1% per month shall constitute a special charge and lien against the adjoining owner's or occupant's lands and may be recovered in the manner provided in sub. (2).
(2)(a) The complaining party may file the certificate executed and delivered to him or her under sub. (1) (b) with the clerk of the town in which the lands charged with the expense and fees set forth in the certificate are located. Upon the filing of the certificate, the town clerk shall issue a warrant for the amount of the listed expenses and fees upon the town treasurer payable to the person to whom the certificate was executed and delivered.
(b) The amount paid by the town treasurer under par. (a) together with interest at the rate of 1% per month shall be included by the town clerk in the next tax roll as a special charge against the lands charged with the expense and fees. The special charge shall be collected by the town treasurer with the other taxes in the town. Any special charge under this paragraph remaining unpaid shall he added to the list of delinquent taxes returned to the county treasurer. The county treasurer shall collect the delinquent special charge or sell the land as for delinquent taxes. All proceedings in relation to the sale of land for a delinquent special charge shall be the same in all respects as in the case of land sold for other delinquent taxes. Every county treasurer who shall collect or receive any moneys on account of delinquent charges under this subsection shall pay the moneys received to the treasurer of the proper town.

¶ 11. Thus, under this statute, adjoining landowners and occupants of land used for farming or grazing are generally required to jointly maintain partition fences. Wis. Stat. § 90.03. If one of these persons fails to build or maintain his or her share of the fence, the aggrieved landowner may complain to the fence viewers, who are the town supervisors, city aldermen or village trustees. Wis. Stat. §§ 90.01, 90.10. If the fence viewers determine the fence has not been properly built or maintained, they must direct the delinquent party to repair or rebuild the fence within a reasonable time. Wis. Stat. § 90.10. If the party does not do so, the aggrieved party may complete the repairs or construction and recover the expense by having the fence viewers determine the expense of fixing or building the fence. Wis. Stat. §§ 90.10, 90.11(1). The aggrieved party can then seek payment from the delinquent party. If the delinquent owner does not pay, the aggrieved party can then file a certificate of the fence viewers' determination with the town clerk and receive payment from the town treasury, which recoups the payment through a tax lien of the delinquent party's property. Wis. Stat. § 90.11(l)(c) and (2).

¶ 12. We first address Giera's claim that Wis. Stat. §90.11 provides the exclusive remedy for an aggrieved party. Specifically, he argues because this statute creates a right and forms a remedy, it is the exclusive remedy available to Tomaszewski. See Le Fevre v. Goodland, 247 Wis. 512, 516-17, 19 N.W.2d 884 (1945); John Mohr & Sons v. Jahnke, 55 Wis. 2d 402, 412, 198 N.W.2d 363 (1972). The statute, he claims, limits the aggrieved party to demanding payment and then filing with the town, but does not allow the aggrieved party to seek redress in court.

¶ 13. The trial court, however, interpreted Wis. Stat. § 90.11 to allow an aggrieved party to enforce the fence viewers' determination in court. It noted the word "may" throughout § 90.11, saying that because the statute did not require the aggrieved party to contact the fence viewers after nonpayment or file the certificate with the town clerk, the legislature did not intend to require the party to use the process established in the statute and, therefore, the court could try the case.

¶ 14. We disagree with the trial court's analysis. The statute says the aggrieved property owner "may" file with the town clerk to recover his or her costs. Despite the use of "may" however, the statute only provides one remedy. We conclude this renders the statute ambiguous. See Eau Claire County v. General Teamsters Union, 228 Wis. 2d 640, 645, 599 N.W.2d 423 (Ct. App. 1999). In Eau Claire County, we determined a statute was ambiguous as to whether it provided the exclusive remedy for terminated county law enforcement officers when it said they "may" appeal to the circuit court, but did not list any other remedy. Id. at 644-45. We noted the use of "may" could connote that there are other avenues of appeal available aside from the remedy provided by the statute or that the aggrieved party might not choose to appeal at all. Id. at 645.

¶ 15. Wisconsin Stat. § 90.11 presents a similar situation. The statute could be interpreted to allow the aggrieved landowner other unlisted remedies, or the choice of pursuing the listed remedy or none at all. A statute that is capable of two or more reasonable interpretations is ambiguous. State v. Ambrose, 196 Wis. 2d 768, 776, 540 N.W.2d 208 (Ct. App. 1995). Therefore, we may resort to its legislative history in our interpretation. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).

¶ 16. We conclude the legislature did not intend to allow an aggrieved party to seek enforcement of the fence viewers' determination in circuit court because the statute once allowed this remedy, but no longer does. The 1849 version of the fence viewing law allowed the aggrieved party to recover double the amount of the fence viewers' determination in "an action for money paid, laid out and expended." Wis. Stat. ch. 14, § 4 (1849). However, in 1915, the legislature changed the statute, making the collection process essentially the same as it is today. Laws of 1915, ch. 618 § 1397(2). In doing this, the legislature modified the remedy for a right it had created. This still remains the only authorized remedy, and it is the only one available to Tomaszewski. See Le Fevre, 247 Wis. at 516-17.

¶ 17. We do not, however, agree with Giera that there is no right to appeal the fence viewers' determination. When a statute makes no provision for judicial review, the action of a board or commission may be reviewed by common law certiorari. State ex rel. Kaczkowski v. Board of Fire & Police Comm'rs, 33 Wis. 2d 488, 501, 148 N.W.2d 44 (1967). A municipality's fence viewers are the members of its governing council; thus, we conclude a determination by the fence viewers would be an action of a board subject to common law certiorari review. See State ex rel. Hippler v. Baraboo, 47 Wis. 2d 603, 613, 616, 178 N.W.2d 1 (1970) (it is fundamental constitutional law that legislative acts can be subjected to judicial scrutiny).

¶ 18. The trial court concluded the fence viewers' determination was subject to the same review a court has over a decision by an administrative agency. While the court correctly determined the fence viewers' decision was subject to some sort of judicial review, it incorrectly concluded what level of review it was. Administrative agencies are subject to review by Wis. Stat. ch. 227 and, as we noted, the fence viewers' determination would be subject to review by common law certio-rari. Although these two procedures are similar, they are not identical. A trial court's review by common law certiorari is limited to: (1) whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis. 2d 463, 472, 278 N.W.2d 835 (1979). The general rule in common law certiorari is that the circuit court does not take evidence on the merits of the case, and the scope of review is limited to the record presented to the tribunal whose decision is under review. Klinger v. Oneida County, 149 Wis. 2d 838, 846, 440 N.W.2d 348 (1989).

¶ 19. The trial court, however, did not limit itself to this review. Its inquiry should have been whether the fence viewers acted according to the law and whether their decision was reasonable. Instead, the court held a trial, taking testimony from Giera, Tomaszewski, Friedenfels, Halida and Rauter, and independently determined the expense of building the fence. This was beyond the scope of what it should have considered.

¶ 20. We remand this matter to the trial court to construe Tomaszewski's complaint as a common law writ of certiorari and to review the fence viewers' determination accordingly.

By the Court. — Judgment reversed and cause remanded with directions.

       Originally assigned as a one-judge appeal, this case was reassigned to a three-judge panel on January 28, 2003. See Wis. Stat. Rule 809.41. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       In addition, Tomaszewski has filed a motion asking us to declare Giera's appeal frivolous. See Wis. Stat. Rule 809.25(3). Because we are reversing the trial court's judgment, Giera's appeal is not frivolous.

       A town's fence viewers are the town's supervisors. Wis. Stat. § 90.01.


author: NETTESHEIM, P.J.

text:
    Mark Miller, a minor by his Guardian ad Litem Laurence J. Fehring, Robert Miller and Laura Miller, Plaintiffs-Appellants, v. Wausau Underwriters Insurance Company and City of Oconomowoc, Defendants-Respondents.
    Court of Appeals

      No. 02-1632.

      Submitted on briefs January 9, 2003.

    Decided February 5, 2003.

    2003 WI App 58
    (Also reported in 659 N.W.2d 494.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Laurence J. Fehring of Habush, Habush & Rottier, S.C. of Milwaukee.
    On behalf óf the defendants-respondents, the cause was submitted on the brief of Peggy E. Van Horn oí Law Offices of Stilp & Cotton of Brookfield.
    Before Nettesheim, PJ., Anderson and Dykman, JJ.
   NETTESHEIM, P.J.

¶ 1. Mark Miller, a minor, was seriously injured when a soccer goal fell and struck him on the head during his team's soccer practice at Champion Field, a park owned by the City of Oconomo-woc. Mark, by his guardian ad litem, and his parents, Robert and Laura Miller, sued the City and its insurer, Wausau Underwriters Insurance Company, for negligence in failing to properly maintain the soccer field and anchor the soccer goal. The Millers appeal the trial court's grant of summary judgment in favor of the City based on the recreational immunity statute, Wis. Stat. § 895.52 (1999-2000).

¶ 2. Like the trial court, we conclude that the recreational immunity statute, Wis. Stat. § 895.52, bars the Millers' claim against the City. Alternatively, the Millers argue that their claim is not barred by the governmental immunity statute, Wis. Stat. § 893.80. We decline to address this argument on the merits because even if the City is not protected by the governmental immunity statute, the City is nonetheless protected under the recreational immunity statute.

BACKGROUND

¶ 3. The facts established by the summary judgment record are undisputed. Until the 1980s, the City of Oconomowoc Park and Recreation Department sponsored youth soccer programs at its city parks. After dropping this sponsorship, the City continued to maintain its soccer fields and provide soccer goals for the fields. Thereafter, private soccer clubs were organized, including the Oconomowoc Soccer Association (the Association) and the Lake Country Unified Youth Soccer Association (LCUYSA). Mark's soccer team, the Vipers, was a member of LCUYSA.

¶ 4. The City had an agreement with the Association by which the Association paid the City a fee of $350 per season for the use of Champion Field, a City-owned park. In exchange, the City accepted field reservations for the Association's practices and games. In addition, the City painted the boundary lines of the field with paint provided by the Association. For a period of time, the City also collected registration forms and money for the Association. The City did not set up teams or arrange schedules for the Association, nor did it provide uniforms, coaches, umpires or equipment.

¶ 5. Unlike the Association, neither LCUYSA nor Mark's team, the Vipers, had any agreement with the City for the use of Champion Field. Instead, the Vipers' use of Champion Field came about informally. According to Mark's coach, the Vipers had been using a soccer field across the street from Champion Field. When the Vipers arrived to use this field during the spring of 1988, the team discovered that the field was no longer in usable condition. So the Vipers moved across the street to Champion Field and began using the field for its practices. Neither the Vipers nor LCUYSA notified the City that the team was using Champion Field for soccer practice, nor was the City paid a fee for such use.

¶ 6. On May 8, 1998, Mark was attending soccer practice with the Vipers at Champion Field. Mark was kicking soccer balls into a goal when his team members began to push the goal back to the field boundary lines. The goal tipped forward, striking Mark on the head and causing him serious injury.

¶ 7. On May 3, 2001, the Millers filed this action against the City and its insurer alleging that Mark participated in an organized team sport activity sponsored by the City at the time of his injury. At the core, the Millers alleged that the City was negligent in the manner it located, relocated and anchored the soccer goal. The City responded with the affirmative defenses of recreational and governmental immunity under Wis. Stat. §§ 895.52 and 893.80(4) and moved for summary judgment on the basis of these defenses.

¶ 8. With respect to recreational immunity, the City argued that Mark was engaged in a recreational activity within the meaning of Wis. Stat. § 895.52(1) (g) at the time of the accident. The Millers responded that Mark was engaged in an organized team sport activity sponsored by the City and, therefore, Mark's activity fell under the "sponsorship" exception set out in the recreational immunity statute.

¶ 9. On April 12, 2002, the trial court issued an oral decision granting the City's motion for summary judgment. The trial court found that the City was entitled to recreational immunity and that the exception to the recreational immunity statute did not apply because the City did not sponsor the practices or games of Mark's team or LCUYSA. The Millers appeal.

DISCUSSION

Standard of Review

¶ 10. This court reviews the grant of summary judgment de novo, applying the same methodology as the circuit court. Auman v. Sch. Dist. of Stanley-Boyd, 2001 WI 125, ¶ 5, 248 Wis. 2d 548, 635 N.W.2d 762. Summary judgment is appropriate if there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law. Id.; Wis. Stat. § 802.08(2). The parties agree that for purposes of the summary judgment the facts are not in dispute. Therefore, our review is limited to applying Wis. Stat. §§ 895.52 or 893.80(4) to the undisputed facts of this case to determine whether the City is immune from liability and is thus entitled to judgment as a matter of law. See Auman, 2001 WI 125 at ¶ 6.

Recreational Immunity

¶ 11. The recreational immunity statute, Wis. Stat. § 895.52, limits the liability of property owners for injuries which occur during recreational activities. Schultz v. Grinnell Mut. Reinsurance Co., 229 Wis. 2d 513, 517, 600 N.W.2d 243 (Ct. App. 1999). The legislature intended the recreational immunity statute to be liberally construed in favor of the property owner. See 1983 Wis. Act 418, § 1; Schultz, 229 Wis. 2d at 518-19. The statute was enacted "to encourage property owners to open their lands for recreational activities by removing a property user's potential cause of action against a property owner's alleged negligence." Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 350, 575 N.W.2d 734 (Ct. App. 1998) (citing Linville v. City of Janesville, 184 Wis. 2d 705, 715, 516 N.W.2d 427 (1994)). The statute provides:

(2) No duty; immunity FROM liability, (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided under s. 23.115(2).
3. A duty to give warning of an unsafe condition, use or activity on the property.
(h) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property ....

Sec. 895.52(2)(b).

¶ 12. The parties agree that the City is an "owner" of "property," within the meaning of Wis. Stat. § 895.52(1)(d) and (l)(e). However, the parties dispute whether Mark was involved in a "recreational activity" as defined in § 895.52(l)(g):

"Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes... outdoor sport, game or educational activity. "Recreational activity" does not include any organized team, sport activity sponsored by the owner of the property on which the activity takes place. (Emphasis added.)

Specifically, the issue on appeal is whether Mark was engaged in an organized team sport activity sponsored by the City at the time of his injury such that the City lost its immunity under the "sponsorship" exception to recreational immunity.

¶ 13. For purposes of Wis. Stat. § 895.52, a "sponsor" is "a person or an organization that pays for or plans and carries out a project or activity." Hupf v. City of Appleton, 165 Wis. 2d 215, 222, 477 N.W.2d 69 (Ct. App. 1991). The amount of involvement necessary to establish sponsorship was discussed by this court in both Hupf and Kloes v. Eau Claire Cavalier Baseball Ass'n, Inc., 170 Wis. 2d 77, 487 N.W.2d 77 (Ct. App. 1992).

¶ 14. In Hupf, we determined that the City of Appleton "sponsored" a softball league in a city park when the City took team registrations, maintained the grounds, and provided umpires, scorekeepers, bases and softballs. Hupf, 165 Wis. 2d at 222. The City also had league participants sign a form releasing the City's recreation department and the school district from liability for any injury suffered in an activity they "sponsored." Id. at 223.

¶ 15. In Kloes, we relied on Hupf in determining that the City of Eau Claire did not sponsor a baseball association even though it charged the association a "per game fee" and employed a maintenance worker to prepare the City-owned park for games. Kloes, 170 Wis. 2d at 84-85. The city did not schedule the games or decide what tournaments the association would participate in. Id. at 84. The association selected its own players, hired umpires for its games and furnished its own equipment. Id.

¶ 16. Relying on Hupf, the Millers argue that the City sponsored soccer at Champion Field when it collected registration forms, collected fees from associations and team participants, incurred expenses in-maintaining the field and took field reservations for games and practices. However, these activities were performed in the context of the City's particular relationship with the Association, not LCUYSA or the Vipers. As to LCUYSA and the Vipers, the City's activities were limited to maintaining Champion Field and providing the soccer goals at that site. These activities were generic to the public at large; they were not provided pursuant to any arrangement, agreement or other relationship with LCUYSA or the Vipers.

¶ 17. The term "sponsor" adopted by this court in Hupf necessarily contemplates a relationship between the person or organization paying for or planning the project or activity and the intended beneficiary of such sponsorship. Further, the legislative purpose of Wis. Stat. § 895.52, as set forth in 1983 Wis. Act 418, § 1, similarly envisions a relationship between the sponsor and the activity, which results in financial benefit to the sponsor. It states, "The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit." 1983 Wis. Act 418, §1.

¶ 18. Based on the language of Wis. Stat. § 895.52, the legislative intent, and Hupf, we conclude that the Millers' reliance on the sponsorship exception of the statute must rest on a sponsorship relationship between the City and LCUYSA or the Vipers. We will not permit the Millers to "piggyback" their claim on any sponsorship relationship that arguably might exist between the City and the Association. If § 895.52 is to be liberally construed in favor of property owners, Schultz, 229 Wis. 2d at 518-19, it follows that the exceptions must be narrowly construed.

¶ 19. Therefore, we look for any evidence of a sponsorship relationship between the City and LCUYSA or the Vipers. To their credit, the Millers do not make an argument that such evidence exists because the summary judgment record is barren of such evidence. Instead, the Millers' argument rests solely and completely on their claim that the City's sponsorship of the Association constitutes sponsorship of all organized soccer team activities at Champion Field. As noted, we reject that argument.

¶ 20. We conclude that the City is entitled to recreational immunity under Wis. Stat. § 895.52.

Governmental Immunity

¶ 21. The Millers make a further argument attempting to persuade us that the City is not entitled to governmental immunity under Wis. Stat. § 893.80(4). The implication of this argument is that if the City does not have governmental immunity, the recreational immunity that the City otherwise enjoys is lost. We reject the Millers' logic. Even if we were to conclude that the City is not entitled to governmental immunity, that decision would not trump the City's recreational immunity. To rule otherwise would run contrary to the public policy that underpins the doctrine of recreational immunity. See Schultz, 229 Wis. 2d at 518-19.

CONCLUSION

¶ 22. We hold that the City did not "sponsor" the soccer activity of LCUYSA or Mark's soccer team and that the City is therefore entitled to recreational immunity pursuant to Wis. Stat. § 895.52. We also hold that the City is entitled to recreational immunity even if we were to assume that the City is not entitled to governmental immunity pursuant to Wis. Stat. § 893.80(4). We affirm the trial court's grant of summary judgment in favor of the City.

By the Court. — Judgment affirmed.

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

       Therefore, it matters not whether the City's arrangement with the Association constitutes sponsorship under the statute.


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James W. Keith, Defendant-Appellant.

    Court of Appeals

      No. 02-0583-CR.

      Submitted on briefs August 1, 2002. —
    Decided February 6, 2003.

    2003 WI App 47
    (Also reported in 659 N.W.2d 403.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler of Anderegg & Mutschler, LLP, Fond du Lac.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gilbert G. Thompson, assistant district attorney for Dodge County, and the brief of Kathleen M. Ptacek, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, EJ., Roggensack and Lundsten, JJ.

       Petition to review denied 4-22-03.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. § 809.41(3) (1999-2000). All other references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

   LUNDSTEN, J.

¶ 1. James W Keith appeals a judgment of the circuit court finding him guilty of operating a motor vehicle while intoxicated, third offense, contrary to Wis. Stat. § 346.63(l)(a). Keith argues that the evidence obtained pursuant to an investigatory stop by a police officer should have been suppressed because the stop occurred outside the officer's jurisdiction and the officer had no authority to conduct the stop. Keith also argues that the results of his blood test should have been suppressed because Keith asked for, but did not receive, an alternative breath test and because the officer failed to properly inform Keith of his right to request an alternative test. We disagree and affirm.

Background

¶ 2. On November 14, 2000, Officer Eric Krueger was driving a marked squad car outside his jurisdiction. Officer Krueger observed a vehicle, driven by defendant Keith, pull out in front of him. It is undisputed that Officer, Krueger made observations about Keith's driving sufficient to supply reasonable suspicion justifying a temporary investigative stop for suspicion of drunk driving. Officer Krueger signaled Keith to pull over and Keith complied. All of these events occurred outside Officer Krueger's jurisdiction. Nothing in the record suggests that statutory or other authority authorized the officer's actions outside his jurisdiction.

¶ 3. After stopping Keith, Officer Krueger was joined by a county sheriffs deputy, Officer Ziorgen, whose jurisdiction covered the location of Keith's stop. Both officers made observations supporting probable cause to arrest Keith for drunk driving and Officer Ziorgen arrested Keith.

¶ 4. Officer Ziorgen transported Keith to a hospital so a blood sample could be drawn. En route to the hospital, Keith asked "if there were any tests that I could be taking." Officer Ziorgen replied that Keith was being taken for a blood test. At the hospital, Officer Ziorgen read an "Informing the Accused" form to Keith, who consented to a blood test. Officer Ziorgen testified that he read the entire form to Keith. In contrast, Keith testified that the officer read only part of the form. An analysis of Keith's blood sample revealed an alcohol concentration of .173%.

¶ 5. Keith was charged with operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle while having a prohibited alcohol concentration, as a third offense. Keith filed several pretrial motions: (1) Keith moved to suppress evidence obtained after the investigative stop on the grounds that Officer Krueger acted without authority because he was outside his jurisdiction; (2) Keith moved to suppress the results of the blood test, arguing that he requested, but did not receive, an alternative chemical test; and (3) Keith moved to preclude automatic admissibility of the blood tests because the officer failed to properly inform Keith of his right to request an alternative test.

¶ 6. The circuit court denied Keith's suppression motions. In particular, the court found that Keith did not request an alternative test and that Officer Ziorgen read the entire "Informing the Accused" form. Keith pled no contest to operating a motor vehicle while under the influence of an intoxicant, third offense.

Discussion

Investigative Stop Outside the Officer's Jurisdiction

¶ 7. Keith argues that suppression of all evidence following his stop is required because Officer Krueger had no authority to conduct an investigatory stop outside the officer's jurisdiction based on mere reasonable suspicion. Keith's argument is based on two assumptions: first, absent specific authorization, police officers outside their jurisdiction have no greater authority than private citizens, and, second, private citizens have no authority to perform investigatory stops based on reasonable suspicion of a crime; rather, private citizens may only conduct a citizen's arrest for crimes committed in their presence. However, we affirm the circuit court's suppression ruling because, regardless of his arguments, Keith has failed to allege the violation of a constitutional right or the violation of a statute requiring suppression as a remedy.

¶ 8. Suppression of evidence is "only required when evidence has been obtained in violation of a defendant's constitutional rights, or if a statute specifically provides for the suppression remedy." State v. Raflik, 2001 WI 129, ¶ 15, 248 Wis. 2d 593, 636 N.W.2d 690 (citations omitted). For example, a violation of the implied consent law does not render otherwise legally obtained evidence inadmissible. See State v. Zielke, 137 Wis. 2d 39, 51-52, 403 N.W.2d 427 (1987). Here, the State correctly points out, Keith has failed to identify a constitutional or statutory violation requiring suppression.

¶ 9. We acknowledge that at least two prior Wisconsin decisions seemingly support the type of analysis suggested by Keith. See State v. Slawek, 114 Wis. 2d 332, 338 N.W.2d 120 (Ct. App. 1983) (police officers outside their jurisdiction arrested defendant after observing him commit a burglary); City of Waukesha v. Gorz, 166 Wis. 2d 243, 479 N.W.2d 221 (Ct. App. 1991) (officer outside his jurisdiction stopped a suspected drunk driver). However, neither case holds that suppression is required merely because a police officer acts without authority outside his or her jurisdiction and neither case suggests any reason to ignore the well-established rule that suppression is required only when evidence is obtained in violation of a constitutional right or in violation of a statute providing suppression as a remedy. See Raflik, 248 Wis. 2d 593, ¶ 15.

Whether Keith was Denied Access to an Alternative Chemical Test

¶ 10. Wisconsin Stat. § 343.305(5)(a) requires police to offer an alternative chemical test to persons who submit to a chemical test under § 343.305 and who request an alternative test. Keith argues that the results of his blood test should be suppressed because he requested and was denied access to an alternative breath test and because Officer Ziorgen failed to properly inform Keith of his right to an alternative chemical test. We reject both arguments.

¶ 11. In this case, the circuit court found that Keith did not request an alternative test. The germane underlying facts — that is, what Keith and the officer said — are not in dispute. When the facts are not in dispute, it might be argued that whether a defendant requested an alternative test is a legal question we should review de novo. Cf. State v. Jennings, 2002 WI 44, ¶¶ 20-24, 252 Wis. 2d 228, 647 N.W.2d 142 (when facts are not disputed, whether defendant has made a request for counsel is a legal question). On the other hand, our non-exhaustive research reveals that at least one prior case treats this question as one of fact, resulting in deferential review. See State v. Renard, 123 Wis. 2d 458, 460, 367 N.W.2d 237 (Ct. App. 1985). However, the parties have not briefed this issue and we need not decide it. Regardless of the level of deference required, we would affirm the circuit court.

¶ 12. The record shows that after Keith's arrest, while traveling to the hospital, Keith asked the officer "if there were any tests that I could be taking." The officer told Keith he was being taken to the hospital for a blood test. This exchange provides no indication that Keith found the officer's response unsatisfactory or that Keith was requesting a test different than the one he was told would be administered at the hospital.

¶ 13. Keith also contends that Officer Ziorgen's failure to read the entire "Informing the Accused" form to him constituted a failure to properly inform Keith of his right to request an alternative test. We reject Keith's argument. Officer Ziorgen testified that he read the entire form to Keith. Keith testified that the officer read only part of the form. The circuit court believed Officer Ziorgen. We affirm that credibility finding because we cannot say that Officer Ziorgen's testimony on this point is "inherently or patently incredible." See State v. Daniels, 117 Wis. 2d 9, 17, 343 N.W.2d 411 (Ct. App. 1983). To the contrary, the record contains no reason to doubt the officer on this topic.

By the Court. — Judgment affirmed.

       For example, Wis. Stat. § 66.0313 provides that law enforcement personnel may, outside their jurisdiction, assist other law enforcement upon request. In this case, no such request was made. Section 66.0313 was previously numbered 66.305. The change was effective January 1, 2001, pursuant to 1999 Wis. Act 150, §§ 362, 363, 674.

       WISCONSIN Stat. § 343.305(5)(a) reads, in relevant part:
      If the person submits to a test under this section,. .. [t]he person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub. (2).

       The parties have not briefed and we do not decide whether Keith's purported request fell outside the requirements of Wis. Stat. § 343.305 because it occurred before the officer read the "Informing the Accused" form. See State v. Piddington, 2001 WI 24, ¶ 51, 241 Wis. 2d 754, 623 N.W.2d 528.