author: HOOVER, P. J.

text:
    Yer Xiong and Bia Vicky Xiong, minors, by John Edmondson, their Guardian ad Litem, Tong Xiong, Xee Xiong, and Xai Xiong, individually, Plaintiffs-Appellants, v. Nhia Lue Xiong, a/k/a Vang Lue Xiong, individually, and State Farm Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 01-0844.

      Submitted on briefs April 8, 2002. —
    Decided April 23, 2002.

    2002 WI App 110
    (Also reported in 648 N.W.2d 900.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Frances Li and Thao & Li, P.A., of Minneapolis, Minnesota.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Jane L. Kirkeide and Menn, Teetaert & Beisenstein, Ltd., of Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, P. J.

¶ 1. Yer Xiong and Bia Vicky Xiong, minors, by their guardian ad litem, and Tong Xiong, Xee Xiong and Xai Xiong (the Xiongs) appeal a judgment dismissing their wrongful death claim following the death of their mother, Mai Xiong, in a car accident. The trial court determined that under Wis. Stat. § 895.04, the wrongful death claim belonged to their father, Nhia Lue Xiong, a/k/a Vang Lue Xiong.

¶ 2. Mai was a passenger in a car driven by Nhia, the Xiongs' father. The Xiongs argue that the trial court erroneously dismissed their claim on the ground that Nhia, as the surviving spouse, was first in the line of priorities with regard to the ownership of a wrongful death claim under Wis. Stat. § 895.04. The Xiongs contend that because their parents' marriage was invalid, Mai had no surviving spouse and therefore their wrongful death claim should be reinstated.

¶ 3. The Xiongs contend that their parents' marriage, performed according to traditional Hmong ceremonial rites in Laos in 1975, was not valid. They argue that because their parents were not married in the eyes of Wisconsin law, the wrongful death claim belongs to them. We conclude that under the unique circumstances of the case, including Mai's and Nhia's prior residence in a common-law marriage state, Mai's status is one of spouse under Wis. Stat. § 895.04. Therefore, we affirm the judgment of dismissal.

BACKGROUND

¶ 4. Nhia and Mai are Hmong, an indigenous ethnic minority that in the mid-twentieth century resided in the mountain regions of Southeast Asia, primarily northern Laos. See Chou Ly, The Conflict Between Law and Culture: The Case of the Hmong in America, 2001 Wis. L. Rev. 471, 473. Prior to their migration to Southeast Asia, the Hmong are believed to have resided in China as far back as five thousand years. Id. at 473 n.20. Hmong society was organized around extended families and large clans to which one owed great allegiance. Id. at 474. "For the most part, the Hmong were able to remain independent from the controlling Laotian government. ..." Id. The Hmong are recognized as having their own unique cultural identity, language and customs. Although they existed within the geo-political boundaries of Laos, they had their own unique traditions. See id.

¶ 5. This matter was submitted to the court on affidavits and deposition transcripts. Nhia, the father in this action, is a machine operator at the Menasha Corporation. He was horn in Laos and was a "one star" soldier from 1968 to 1975 in a secret guerilla army of Hmong soldiers that operated under the auspices of the United States Central Intelligence Agency. With the help of a translator, Nhia testified at his deposition that his role as a soldier was to gather intelligence for the CIA.

¶ 6. At the end of March or in April 1975, Nhia and Mai participated in a traditional Hmong marriage ceremony in Laos. Nhia received permission from Mai's parents to marry their daughter. As part of the ceremony, there were two witnesses, who functioned as negotiators. They negotiated Nhia's payment to Mai's family in accordance with Hmong marriage tradition. Nhia testified he made the payment to Mai's family. There is no dispute that the couple fully complied with Hmong traditional marriage rites.

¶ 7. Nhia testified that it was common for Hmong people to marry in this manner without a formal document from the Royal Laotian government. Although he knew the government required that papers be filed to validate the marriage in Laos, Nhia testified that, as a member of the secret army that worked for the CIA, he would have been killed if he had gone to the government and told them who he was. This statement is unrebutted. Nhia and Mai fled Laos in May 1975 due to the collapse of the Royal Laotian regime and the communist takeover. They had no documentation of any kind, such as birth certificates, driver's licenses or military identification.

¶ 8. Nhia explained that when they reached the refugee camp in Thailand, no papers were required because "they know exactly all the Hmong people are refugee[s] and they will not have any information." Mai and Nhia lived in the refugee camp for the next five years. One child was born to them while they were living in the camp, and no birth certificate was filled out. Nhia testified that he did not have their marriage validated while at the camp. The record is not clear what procedures were in place in Thailand to validate the marriage and under what country's laws the marriage would have been validated.

¶ 9. In 1980, when Nhia and Mai came to the United States, they told immigration authorities that they were married. Mai's application for citizenship and certificate of naturalization states that she was married. Nhia testified that after the Hmong traditional marriage ceremony, he and Mai both believed they were married.

1 10. Nhia and Mai lived in Chicago for three months before leaving for Pennsylvania, a state that recognizes common-law marriage. There, Nhia was employed by a mushroom producer and Mai bore three children. After living approximately three years in Pennsylvania as husband and wife, the couple moved to Wisconsin, where Mai gave birth to their fifth child. For the next fifteen years, they continued to live together as husband and wife and raise their five children in Wisconsin. Both became United States citizens in 1995. There is no suggestion that the validity of their marriage was ever questioned until the events that gave rise to this action.

¶ 11. On August 23, 1998, Nhia was driving east on U.S. Hwy. 10 and collided with the rear of a van that was pulling a trailer. Mai, who was sitting in the front seat, suffered fatal injuries as a result of the collision. Mai's death certificate recites that she was married.

¶ 12. The Xiongs commenced this wrongful death action against Nhia and his insurer, State Farm, to recover damages arising from the death of their mother. State Farm defended on the ground that Nhia is Mai's surviving spouse and therefore under Wis. Stat. § 895.04, their children, the Xiongs, have no right to assert a wrongful death claim. State Farm contended that whether Nhia and Mai were married was a question of law to be decided by the trial court. Upon briefs and affidavits, the trial court agreed with State Farm and dismissed the Xiongs' claim. The trial court ruled that the couple "were married and their marriage is valid and entitled to recognition by the State of Wisconsin and all its Courts as reflected by the record in this case." The Xiongs appeal the judgment of dismissal.

DISCUSSION

¶ 13. The Xiongs do not dispute that under Wis. Stat. § 895.04, the children of a surviving spouse have no claim for the wrongful death of their parent. A wrongful death claim did not exist at common-law and is purely statutory. Cogger v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 (1967). Under the statute, "[s]ur-viving children had no cause of action as long as the surviving spouse of decedent remained alive." Id. at 355. The statute provides that the surviving spouse was the first in the line of priorities with regard to the ownership of a wrongful death claim. Id.

¶ 14. The Xiongs argue, nonetheless, that because their parents never legally married, Nhia is not a surviving spouse and they are entitled to bring the wrongful death action. Generally, whether a marriage is valid is controlled by the law of the place where the marriage was contracted. See In re Estate of Ferguson, 25 Wis. 2d 75, 130 N.W.2d 300 (1964). "The law of the matrimonial domicil governs with respect to the substantial rights of husband and wife, as between themselves and their privies ... ." Jaeger v. Jaeger, 262 Wis. 14, 16, 53 N.W.2d 740 (1952) (citation omitted). "Marriages valid where celebrated are valid everywhere, except those contrary to the law of nature and those which the law has declared invalid upon the ground of public policy." In re Estate of Campbell, 260 Wis. 625, 631, 51 N.W.2d 709 (1952). The Xiongs assert that their parents' Hmong marriage ceremony was not valid under Laotian law.

¶ 15. In support of their contention, the Xiongs offer an affidavit of a Laotian legal expert, Khamben Sanavongsay, who stated that under "existing Laotian Marriage Law in 1975, a marriage is not valid unless it is solemnized by the District Officer, Taseng." Laos also had common-law marriage. If the Taseng was not present at the ceremony, the parties and six witnesses, three for each side, had to file necessary documents with the Taseng, who would verify the information and certify it to the county officer, the Chao Mouang. The six witnesses had to certify under oath that the parties had lived together continuously in the country for a long period of time or that they had children together in Laos. The signature of a Chao Mouang was necessary proof to establish marital status. According to the affidavit, "[t]his procedure was uniformed nationally as Lao Royal Government followed the French Federal system."

¶ 16. The affidavit also points out that although Nhia and Mai lived together in a refugee camp in Thailand for five years, they were not considered residents of Thailand and could not claim any right under the law of that country. Additionally, the Xiongs observe that common-law marriages were abolished in Wisconsin in 1917. See In re Van Schaick's Estate, 256 Wis. 214, 216, 40 N.W.2d (1949). They conclude that because their parents' marriage was not validated under the laws of Laos, Thailand or Wisconsin, Mai was not Nhia's spouse under Wisconsin law.

¶ 17. We are not persuaded. Although the Xiongs offer a tidy syllogism to support their claim, we are mindful that this is not a case where a foreign government has decreed the marriage invalid and we are asked to uphold the foreign judgment. Consequently, to override the presumption of legitimacy of Nhia and Mai's marriage may require a recognition that the laws of the former Royal Laotian regime supercede the solemnization ceremonies of a discrete and unique cultural tradition contained in its own boundaries, implying potential federal executive branch questions.

¶ 18. State Farm offers no counter affidavit to refute the Xiongs' assertions regarding the requisites of Laotian law. Nonetheless, State Farm contends that a presumption of validity must be accorded the ceremonial rites: "Of course, where there has been a marriage ceremony, it is prima facie valid, for the law presumes in favor of marriage." Williams v. Williams, 63 Wis. 58, 64, 23 N.W 110 (1885). Also, State Farm argues that the official acts of the medical examiner and the immigration officials must he accorded a presumption of validity. "[I]n reviewing the actual facts existing at the time a certificate of death was filed, a circuit court must accord the information certified by a medical examiner a presumption of validity." In re Sullivan, 218 Wis. 2d 458, 467-68, 578 N.W.2d 596 (1998). The party petitioning the court "bears the burden of showing by the greater weight of the credible evidence that the facts contained in the certificate of death do not represent the actual facts in effect at the time the certificate of death was filed." Id. at 468.

¶ 19. State Farm maintains that a mere affidavit, prepared over twenty-five years after the fact, is insufficient to rebut the strong presumptions as to the validity of the ceremonial marriage, the lawful nature of the relationship that followed it, and the regularity of the immigration and naturalization documentation and death certificate.

The considerations which support... the presumption of regularity of official and other lawful acts — coupled with general public policy to preserve and protect marriage and the home — give rise to a presumption that a marriage which is shown to have been solemnized was legally and properly performed, that the parties had legal capacity, and that the marriage is valid.... In short, every reasonable presumption is indulged in favor of the validity of the marriage ....

In re Estate of Campbell, 260 Wis. at 630 (quoting 1 Jones on Evidence § 86, at 150 (4th ed. 1938)).

¶ 20. State Farm points out that there is no question that the couple believed they were validly married under the Hmong ceremonial rites. It also claims that "[i]t is in the public interest to maintain a marriage relationship." Smith v. Smith, 52 Wis. 2d 262, 269, 190 N.W.2d 174 (1971); see also Wis. Stat. § 765.01. So strong are the presumptions and public policy concerns, argues State Farm, that a court has equitable powers to rule an otherwise invalid marriage valid, relying on Halker v. Halker, 92 Wis. 2d 645, 651, 285 N.W.2d 745 (1979) (Equitable considerations apply and second marriage may be validated under common-law even though statutory requirements have not been met.).

¶ 21. While we conclude that Mai's relationship to Nhia is one of a lawful spouse, we do not rely on a presumption. Due to factual distinctions, we are unconvinced that the Halker case squares with State Farm's theory. Closer to the facts at hand, however, is Leong v. Leong, 27 F.2d 582 (9th Cir. 1928), which recognizes a "putative marriage." The parties, who were Chinese, were married in Hawaii in 1884 "all in accordance with Chinese customs, but without a license, as required by the laws of Hawaii." Id. They immediately assumed and maintained, for the next thirty-five years, the relations of husband and wife. Id. The wife bore thirteen children and performed the domestic duties of a housewife. Id. In 1920, the husband ceased to recognize the marriage as valid because no license had been obtained as required by Hawaiian law. Id. The Ninth Circuit Court of Appeals, recognizing the contractual nature of marriage, observed that "equity protects relationships and vindicates rights not recognized in a court of law .. .." Id. at 585. The court held that the "putative wife" was entitled to the rights of a legal wife. Id.

■ ¶ 22. Accordingly, we are satisfied that there is authority for the proposition that when a determination is made that a marriage is void or voidable and the court finds that either or both parties believed in good faith that the marriage was valid, the court shall declare that the marriage shall have the legal effect of a valid marriage. See Christopher L. Blakesley, The Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 2 (1985), and cases cited therein. A putative marriage "is a marriage which has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable." Id. at 6. We agree with the circuit court's ruling that Mai's and Nhia's marital relationship should be accorded recognition under Wisconsin law.

¶ 23. Recognizing their marital relationship under the circumstances presented here does not violate any public policy. This is not a case where evidence of the marriage rites would offend this state's notions of justice and decency. The parties were of age and competent to enter into the marital contract. Also, Wis. Stat. § 895.04 does not define the term "spouse," thereby not foreclosing the notion that a "putative spouse" could fall within the meaning of the statute.

¶ 24. Although not briefed by the parties, we note that the couple resided as husband and wife for three years in Pennsylvania, one of the few states that recognize common-law marriage. In Pennsylvania, a "common law marriage contract does not require any specific form of words, all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time." Faber v. TGI-Friday's, Inc., 148 F. Supp. 2d 556, 558-59 (E.D. Penn. 2001). Cohabitation and reputation of marriage are factors to be considered in determining whether the -parties have entered into a common-law marriage. Id. at 559. Because the parties fled Laos shortly after their ceremony, had only refugee status in Thailand and lived just three months in Illinois before settling in Pennsylvania for the next three years, where three of their children were born, Nhia and Mai's connection, as a married couple, to Laos and Thailand was more tenuous than to Pennsylvania. Accordingly, their residence in Pennsylvania, their first real home as a married couple, is another reason to recognize their marital relationship.

CONCLUSION

¶ 25. Marriage is the "foundation of the family and of society," the stability of which "is basic to morality and civilization, and of vital interest to society and the state." Wis. Stat. § 765.01(2). The Xiongs' arguments imply the potential for instability that a declaration of invalidity may have. Under the circumstances of this case, we are satisfied that Mai should be recognized as Nhia's lawful spouse. Therefore, we conclude that the trial court properly dismissed the Xiongs' wrongful death claim.

By the Court. — Judgment affirmed.

       In a March 19, 2002, order, the supreme court denied certification of this issue.

       It is undisputed that the laws of Thailand ordinarily would not apply to refugees living in the camps.

       At the time of Nhia's deposition, he testified that his children were ages twenty-one, twenty, nineteen, eighteen and sixteen.

       The death certificate lists her surviving spouse's name as Vang Lue Xiong; Nhia explained that this was his previous name.

       Although a "wrongful death action is not an action to affirm or annul a marriage," the right of á party in a wrongful death action to assert that a survivor is not the spouse of a decedent has been upheld. Corning v. Carriers Ins. Co., 88 Wis. 2d 17, 21, 276 N.W.2d 310 (Ct. App. 1979).

       A Laotian native, Sanavongsay attended the Royal Institute of Law and Public Administration in Vientiane, Laos, from 1964 to 1967, when he graduated and was licensed as an attorney at law. He completed his studies of Laotian law as inherited from the French at the International Institute of Public Administration in Paris, France. In 1969, he was appointed deputy governor of Saravane Province, Laos, and implemented the civil codes, including marriage and divorce laws, and provided legal assistance to county officers, called "Chao Mouang." In 1974, he was appointed governor of Champasak Province and was responsible for the appointment, oversight and training of the Chao Mouang and their subordinate district officers, called Taseng, until the communist government came to power in 1975.

       It is undisputed that Nhia and Mai were not married according to Thai law.

       In a different context, one author asserts: "The tradition of recognizing tribal marriage law is quite pronounced." Antoinette Sedillo Lopez, Evolving Indigenous Law: Navajo Marriage-Cultural Traditions & Modern Challenges, 17 Ariz. J. Int'l & Comp. L. 283, 304 (2000).

       'When a marriage is shown in evidence, whether regular or irregular, and whatever the form of proof, the law raises a strong presumption of its legality." Holland Am. Ins. Co. v. Rogers, 313 F. Supp. 314, 317 (N.D. Calif. 1970).

       Nhia has stated, however, that he now believes the marriage is not recognized under Wisconsin law.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Methodist Manor of Waukesha, Inc., d/b/a Cornstock Care Center and Maplewood Center, Plaintiff-Appellant, v. Evelyn Martin and Frederick L. Martin, Defendants-Respondents.
    Court of Appeals

      No. 01-2877.

      Submitted on briefs March 28, 2002. —
    Decided April 23, 2002.

    2002 WI App 130
    (Also reported in 647 N.W.2d 409.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Reginald Hislop, Jr., West Allis, and Donal M. Demet of Demet & Demet, S.C., Milwaukee.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Emanuel V. Gumina of Gumina & Gumina, Brookfield, and Brian J. Henderson of Henderson & Levihn, Milwaukee.
    Before Fine, Schudson and Curley, JJ.
   FINE, J.

¶ 1. Methodist Manor of Waukesha, Inc., appeals from the trial court's order and judgment dismissing its amended complaint against Frederick L. Martin. Methodist Manor claims that Frederick Martin diverted from a joint bank account that he shared with his mother monies that she was obligated by law and contract to remit to Methodist Manor. We reverse.

I.

¶ 2. Our review of the trial court's dismissal of Methodist Manor's amended complaint against Frederick Martin is de novo and we must accept as true the facts alleged in that complaint. See Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660, 664 (1979); Heinritz v. Lawrence Univ., 194 Wis. 2d 606, 610, 535 N.W.2d 81, 83 (Ct. App. 1995).

¶ 3. According to Methodist Manor's amended complaint, Evelyn Martin was admitted to a Methodist Manor skilled nursing facility, see Wis. Stat. § 49.43(11), on January 22, 1999, and lived there until August 5, 2000. She owes Methodist Manor some $8,000.

¶ 4. Methodist Manor claims that Frederick Martin, Evelyn Martin's adult son, is "her attorney-in-fact, and the joint holder" with her of a bank account, and is her "agent" in connection with money provided to him for her care "by the Social Security Administration." It also alleges that he received on his mother's behalf "her monthly income from Social Security and other unknown sources" but did not use that money "for her care and residency" at Methodist Manor "as required by law and instead converted said funds or portions thereof for himself or others, thereby depriving [Methodist Manor] of the amounts due under" Methodist Manor's written agreement with Evelyn Martin. (Stray comma omitted.)

¶ 5. As noted, the trial court dismissed Methodist Manor's amended complaint against Frederick Martin. It ruled that the amended complaint did not state a claim against Frederick Martin because there was "no personal guaranty [by Frederick Martin], [and] there is no privity of contract" between him and Methodist Manor. We disagree.

II.

¶ 6 Wisconsin Stat. § 49.45(7)(a) (1999-2000) sets the personal liability of certain patients for care given to them by facilities such as Methodist Manor. It provides:

A recipient who is a patient in a public medical institution or an accommodated person and has a monthly income exceeding the payment rates established under 42 USC 1382(e) may retain $45 unearned income or the amount of any pension paid under 38 USC 3203(f), whichever is greater, per month for personal needs. Except as provided in s. 49.455(4)(a), the recipient shall apply income in excess of $45 or the amount of any pension paid under 38 USC 3203(f), whichever is greater, less any amount deducted under rules promulgated by the department, toward the cost of care in the facility.

Additionally, Evelyn Martin's contract with Methodist Manor required that funds encompassed by § 49.45(7) (a) "be paid" to the facility "by the 15th of each month." The question presented by this appeal is whether a person who is not a patient or an "accommodated person" but who has control over funds belonging to the patient or accommodated person is liable to the nursing home facility for conversion if he or she diverts the funds for his or her own use. We answer this question "yes."

¶ 7. Although the precise issue presented by this appeal is a matter of first impression, both here and elsewhere, a person who diverts funds belonging to another person and owed by that other person to a third party is liable to the third party for conversion. Thus, in Farm Credit Bank of St. Paul v. F&A Dairy, 165 Wis. 2d 360, 371, 477 N.W.2d 357, 361 (Ct. App. 1991), we recognized that a complaint states a claim in conversion when it alleges that the plaintiff is "entitled to immediate possession" of a "chattel" over which the defendant had wrongfully retained dominion or control. See also Production Credit Ass'n v. Equity Coop Livestock Sales Ass'n, 82 Wis. 2d 5, 10, 261 N.W.2d 127, 129 (1978) ("An action for conversion is bottomed upon a tortious interference with possessory rights."). The thing that the defendant diverts to his or her own use need not, however, be a chattel; money may also be converted. Regas v. Helios, 176 Wis. 56, 59, 186 N.W. 165, 166 (1922).

¶ 8. As we have seen, not only does Wis. Stat. § 49.45(7)(a) require that Evelyn Martin, as the recipient of certain funds apply those funds "toward the cost" of her care in Methodist Manor's facility, but her contract with Methodist Manor also required that those funds "be paid" to the facility "by the 15th of each month." Thus, by the fifteenth of every month Methodist Manor became entitled to the immediate possession of the funds at issue. As recognized by City of Sheboygan v. Finnegan, 245 Wis. 349, 352, 13 N.W.2d 923, 924 (1944), "[a]n agent, who knows that his principal is not entitled to funds received by him for such principal from a third person, is under a duty to return them to the one rightfully entitled thereto." Applying this statement to the facts alleged in Methodist Manor's amended complaint, Frederick Martin is Evelyn Martin's "agent," he received funds from the Social Security Administration for her, and Methodist Manor is the "one rightfully entitled" to those funds by virtue of § 49.45(7)(a) and Evelyn Martin's contract with it; Frederick Martin is thus "under a duty to" remit those funds to Methodist Manor.

¶ 9. In sum, taking the facts as alleged in Methodist Manor's amended complaint as true, Frederick Martin wrongfully diverted for his own use funds that he received for his mother's care. Accordingly, Methodist Manor's amended complaint stated claims for conversion. Additionally, it makes no difference whether Frederick Martin was acting in good faith. Production Credit, 82 Wis. 2d at 8, 261 N.W.2d at 128 (agent's "good faith and lack of knowledge" of a third party's right to a principal's property that the agent diverts "are not good defenses"); see also Restatement (Second) op Agency § 349 (1958) (acting "reasonably, although mistakenly" is not a defense to conversion); id., Reporter's Notes (person liable in conversion even though he or she "had no reason to know of the interests of the other"); Schwartz v. Schwartz, 365 N.Y.S.2d 589, 592 (Sup. Ct. App. Term 1975) (per curiam) ("[A]n agent is guilty of conversion although he acts in good faith for a principal who receives the benefit.").

By the Court. — Judgment and order reversed and cause remanded.

       As noted, Evelyn Martin entered Methodist Manor in January of 1999. At the time, Wis. Stat. § 49.45(7)(a) permitted patients to retain $40 or the pension paid under the referenced federal statute, 38 U.S.C. 3203(f). Effective July 1, 2001, § 49.45(7)(a) was amended to increase the retained amount to $45. 1999 Wis. Act 9, § 1418m. Other than this change, Wis. Stat. § 49.45(7)(a) was during Evelyn Martin's tenure at Methodist Manor as it is quoted in the main body of this opinion. The parties agree that Evelyn Martin is an "accommodated person" as that term is used in Wis. Stat. § 49.45(7)(a). See Wis. Stat. § 49.43(le).
      Apparently unbeknownst to the Wisconsin legislature, 38 U.S.C. § 3203(f) was renumbered as 38 U.S.C. § 5503(f) by both Pub. L. No. 102-40, § 402(a), 105 Stat. 187 (1991) and Pub. L. No. 102-83, § 5(b), 105 Stat. 378 (1991), and as 38 U.S.C. 5503(d) by Pub. L. No. 107-103, § 204(a)(2), 115 Stat. 976 (2001). The provision refers to veterans' pension benefits and is not implicated by this case. 42 U.S.C. § 1382(e) sets forth certain eligibility criteria and limitations, and is also not implicated by this case. WISCONSIN Stat. § 49.455(4) (a) preserves for a spouse of an institutionalized person a portion of the institutionalized spouse's income. This provision is also not implicated by this case.

       This distinguishes the present case from the general rule upon which Frederick Martin relies: that an agent is not liable to third persons for damages they sustain by the agent's breach of a duty to the principal. See Restatement (Second) of Agency § 352 (1958) ("An agent is not liable for harm to a person other than his principal because of his failure adequately to perform his duties to his principal, unless physical harm results from reliance upon performance of the duties by the agent, or unless the agent has taken control of land or other tangible things."); Greenberg v. Stewart Title Guar. Co., 171 Wis. 2d 485, 498, 492 N.W.2d 147, 153 (1992); Krawczyk v. Bank of Sun Prairie, 203 Wis. 2d 556, 567, 553 N.W.2d 299, 303 (Ct. App. 1996). Thus, an Illustration to § 352 cited by Frederick Martin notes: "A is given money by P and directed to pay it to T. A fails to pay the money to T. A is not thereby liable to T." Restatement (Second) of Agency § 352 cmt. a., illus. 1 (1958). But Comment a. to § 352 recognizes: "If a person has a cause of action in tort against an agent who has not contracted with him and who holds nothing for him, it is because the agent has caused him harm by conduct which is tortious, and not because of the contractual obligations of the agent to the principal."
      Thus, as we noted in the main body of the opinion, Restatement (Second) of Agency § 349 (1958) recognizes the tort of conversion by an agent of a principal's property that rightfully belongs to another. Here, Methodist Manor's amended complaint has alleged that Frederick Martin converted monies to which it had the statutory and contractual right of possession. This was sufficient to withstand Frederick Martin's motion to dismiss.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jimmie Davison, Defendant-Appellant.
    Court of Appeals

      No. 01-0826-CR.

      Submitted on briefs March 7, 2002. —
    Decided April 24, 2002.

    2002 WI App 109
    (Also reported in 647 N.W.2d 390.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Keith A. Findley of the University of Wisconsin Law School, Frank J. Remington Center, Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review granted 9-3-02.

   ANDERSON, J.

¶ 1. Jimmie Davison appeals a judgment of conviction and an order denying his post-conviction motion. A judgment of conviction was entered pursuant to a guilty plea of battery by a prisoner under Wis. Stat. § 940.20(1) (1999-2000), aggravated battery under Wis. Stat. § 940.19(6), and threats to injure under Wis. Stat. § 943.30(1), all as a repeater under Wis. Stat. § 939.62. In addition, the trial court denied Davison's amended postconviction motion to reconsider vacating either the aggravated battery count as a repeater or the battery by a prisoner count as a repeater. The motion alleged that the two counts of battery were multiplicitous, thereby violating his state and federal constitutional guarantees against double jeopardy. The court declined to re-entertain the motion, reasoning that Davison waived his multiplicity and double jeopardy claim by pleading guilty.

¶ 2. Davison's appeal raises three issues: (1) was the right to challenge on the ground of multiplicity and a violation of double jeopardy rights waived by a guilty plea, (2) are the charges of battery multiplicitous under Wis. Stat. § 939.66(2m), and (3) what is the appropriate remedy. We conclude that Davison did not waive his right to challenge multiplicity and § 939.66(2m) applies to Wis. Stat. §§ 940.19 and 940.20, consequently making the charges multiplicitous. As to the remedy, we remand the issue to the trial court to conduct a hearing to determine whether the usual remedy of reversing the conviction, vacating the plea agreement, and reinstating the original information applies, or whether a different remedy is more appropriate. We therefore reverse and remand for further proceedings by the trial court.

FACTS

¶ 3. On November 11, 1997, Davison was an inmate at the Kenosha Correctional Center assigned to a work release program at Maple Leaf Farms in Franks-ville, Wisconsin. On this date, Davison arranged for his wife, Sharon, to bring him lunch on the grounds of Maple Leaf Farms.

¶ 4. When Sharon arrived, according to the complaint, Davison got into the car and instructed her to drive into the farm area and park inside an isolated shed-type building. Davison then made a sexual advance towards his wife, which she rejected. For the next forty-five minutes, Sharon claims that Davison intermittently choked her, attempted to kiss or touch her, and continually screamed at her. At one point, she got out of the car and tried to escape, but Davison pursued and caught her and pulled her back into the shed. Davison then pulled her back into the car and began choking her again. Davison finally stopped choking her when she reminded him that he had to get back or he would be in trouble. His wife then drove him back to the work area and before getting out he punched her on the left side of the head.

f 5. Additionally, on February 8, 1998, Sharon brought their children to the Kenosha Correctional Center for a visit. During this visit, Davison threatened Sharon, saying that he would "blow her away" if she proceeded with filing for a divorce. He told her that he would set up a hit so that she would be killed and he would not be linked to the murder.

¶ 6. The criminal complaint filed by the Kenosha County District Attorney's Office charged Davison for the November 11 incident with one count of kidnapping, one count of false imprisonment, and one count of aggravated battery, all as a repeater. In addition, the complaint included one count of threats to injure as a repeater for the February 8 incident. The second count of battery by a prisoner as a repeater was added to the information filed July 27,1998, based on the November 11 incident.

¶ 7. In response to the second count of battery being added to the information, Davison filed a motion on September 2, 1998, claiming that the two battery charges were multiplicitous under Wis. Stat. § 939.66(2m) and violated the constitutional prohibition against double jeopardy. On September 30, 1998, the trial court rejected Davison's motion, finding that the charges were not multiplicitous or in violation of double jeopardy.

¶ 8. Subsequently, Davison entered into a plea agreement whereby the State would dismiss but read in kidnapping as a persistent repeater and false imprisonment as a repeater; in return, Davison pled guilty to aggravated battery as a repeater, battery by a prisoner as a repeater, and threatening to injure as a repeater. However, the plea bargain did not include any provisions barring Davison from making his multiplicity or double jeopardy claim on appeal.

¶ 9. The court sentenced Davison to six years in prison for the aggravated battery, five years to be served consecutively for the battery by a prisoner, and another five-year term to be served consecutively for the threats to injure. Following sentencing, Davison appealed. Davison then complained that his appointed attorney failed to consult with him. The court of appeals granted Davison's counsel's motion to withdraw, directed the public defender to appoint new counsel, and granted an extension of time for filing a postconviction motion and appeal.

¶ 10. Accordingly, on January 26, 2001, Davison filed a postconviction motion, and on February 20,2001, an amended postconviction motion reraising the multiplicity and double jeopardy claim was filed. The court denied the multiplicity and double jeopardy claim, finding that although the claim may have merit, the issue was waived by the guilty plea. Davison appeals.

DISCUSSION

¶ 11. In reviewing this decision, this court independently reviews questions of constitutional fact, requiring the application of constitutional principles to the facts of the case. State v. Anderson, 214 Wis. 2d 126, 129, 570 N.W.2d 872 (Ct. App. 1997).

Waiver

¶ 12. The State argues that Davison waived his right to challenge on the ground of multiplicity and to claim a violation of his protection against double jeopardy in regard to the two battery charges when he entered a plea of guilty. However, while it is true that a guilty plea waives all nonjurisdictional defects, including constitutional claims, Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563 (1980), there are certain defects that are not waived. Double jeopardy claims are one such defect. State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982).

1 13. In this case, as in State v. Hubbard, 206 Wis. 2d 651, 656, 558 N.W.2d 126 (Ct. App. 1996), the potential double jeopardy violation is facially ascertainable on the record without supplementation. We conclude that Davison has not waived his right to challenge on the ground of multiplicity and to claim a double jeopardy violation.

¶ 14. Even though we find that Davison has the right to challenge, we still keep in mind that serious charges were dropped in the plea agreement, which had a potential penalty of life plus eight years' imprisonment, in return for Davison's guilty plea to the battery charges. The benefits accruing to Davison as a result of the plea agreement will be considered in the remedy portion of this opinion. Since we have determined that Davison has not waived his right to challenge, we now turn to the issue of multiplicity.

Multiplicity

¶ 15. Multiplicity claims are analyzed using a two-pronged test: (1) whether the charged offenses are identical in law and fact; and (2) if the offenses are not identical in law and fact, whether the legislature intended the multiple offenses to be brought as a single count. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).

¶ 16. Whether offenses are different in law, for purposes of double jeopardy, is determined by the Blockburger v. United States, 284 U.S. 299, 304 (1932) "elements only" test. State v. Lechner, 217 Wis. 2d 392, 405-06, 576 N.W.2d 912 (1998). The Blockburger test states as follows: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304. In this case, both parties agree that Wis. Stat. §§ 940.19(6) and 940.20(1) do not contain the same elements and therefore the offenses are different in law. Blockburger, 284 U.S. at 304.

¶ 17. Since the offenses are different in law, the question becomes whether under Wis. Stat. § 939.66(2m) the battery charges should be brought as a single count. The State argues that the aggravated battery and the battery by a prisoner are not multiplici-tous charges under § 939.66, which provides in part:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(2m) A crime which is a less serious or equally serious type of battery than the one charged.

To arrive at this conclusion, the State reasons that the word "battery" is ambiguous and therefore we can turn to the legislative history which the State says reveals that § 939.66(2m) only applies to Wis. Stat. § 940.19 and degrees of battery. However, we disagree that the word "battery" is ambiguous and we disagree that the legislative history shows that § 939.66(2m) only applies to § 940.19 and degrees of battery.

¶ 18. As defense counsel points out, Wis. Stat. § 939.66(2m) contains no language limiting its application to any particular provisions of the statutes or any types of batteries. Instead, the statute is applicable to the entire criminal code. Furthermore, the phrase "or equally serious" is included in the statute, which in this case would encompass battery by a prisoner, a Class D felony. The battery by a prisoner, statute, Wis. Stat. § 940.20, provides that any battery by a prisoner is a Class D felony, whereas Wis. Stat. § 940.19 deals with the degree of crime. Since the enhancer in § 940.20 is the status of the actor, a Class A misdemeanor or a Class E felony would be charged as a Class D felony if the actor is a prisoner, thereby accomplishing the deterrent effect the legislature sought. Consequently, since the enhancer is the status of the actor in § 940.20 and not the degree of the crime, there is not an ambiguity problem between the statutes with regard to the word "battery."

¶ 19. While the impetus for creating Wis. Stat. § 939.66 originated with State v. Richards, 123 Wis. 2d 1, 11-12, 365 N.W.2d 7 (1985), which involved only Wis. Stat. § 940.19, the 1953 Judiciary Committee Report on the Criminal Code states:

This section [939.66] permits conviction of a crime included within the crime charged and states what crimes are included crimes. The reason behind the rule of this section is the state's difficulty in determining before a trial exactly what crime or degree of the crime it will be able upon the trial to prove beyond a reasonable doubt.

State v. Vassos, 218 Wis. 2d 330, 339, 579 N.W.2d 35 (1998). As can be seen by the phrase "what crime or degree of the crime," the focus of the statute was which crime could be proven beyond a reasonable doubt. This comment is evidence that the focus was not on limiting the statute to § 940.19. Therefore, the State's assertion that the legislative history somehow limits § 939.66 to § 940.19 is incorrect.

¶ 20. Based on the clear statement provided in Wis. Stat. § 939.66(2m) and the lack of legislative intent to the contrary, we conclude that § 939.66 covers both Wis. Stat. §§ 940.19 and 940.20 in this case. Therefore, the two battery charges are multiplicitous and there is a double jeopardy violation. We now consider the remedy.

Remedy

¶ 21. To remedy this violation, Davison asks this court to reverse with directions to vacate one of his multiplicitous battery convictions. Davison relies on State v. Benzel, 220 Wis. 2d 588, 590, 583 N.W.2d 434 (Ct. App. 1998), in which the accused pled no contest to multiple offenses. Benzel challenged his conviction on a tax stamp count after the supreme court declared the tax stamp statute unconstitutional. See State v. Hall, 207 Wis. 2d 54, 65, 557 N.W.2d 778 (1997). The court of appeals ruled that the unconstitutionality of the statute applied retroactively. Benzel, 220 Wis. 2d at 593. As a result, the case was remanded to the circuit court with instructions to vacate the conviction on the tax stamp count; the conviction on the other count remained intact. Id.

¶ 22. However, Benzel is not wholly analogous to the present case because there was no plea agreement involved in that case. We cannot simply ignore the plea agreement in this case, even though the State was on notice of Davison's intention. Substantial concessions were given to Davison by the State in return for the guilty plea on the battery counts. The State relied on Davison's agreement when dropping the kidnapping and false imprisonment charges.

¶ 23. Furthermore, the court in Benzel could not reinstate the original information due to the unconstitutional count being void. Here, the trial court could have reinstated the original information based on the original complaint which only included aggravated battery as a repeater and not battery by a prisoner as a repeater.

¶ 24. In the Wisconsin Supreme Court's recent decision in State v. Robinson, 2002 WI 9, ¶ 57, 249 Wis. 2d 553, 638 N.W.2d 564, the court held that

when an accused successfully challenges a plea to and a conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, to vacate the plea agreement, and to reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. We also conclude, however, that under some circumstances this remedy might not be appropriate.

Furthermore, the court held that a court must, therefore, examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant's and the State's interests. Id. at ¶ 48. Considerations include circumstances that would prevent the State from trying the defendant under the original information or would prevent the defendant from defending against those counts. See id. at ¶ 49.

¶ 25. The Robinson case is also not entirely analogous to the present case because the information was not amended to include the illegal battery count pursuant to a negotiated plea agreement; rather, the original information included the multiplicitous count. However, Robinson is instructive because substantial concessions were made by the State in a negotiated plea agreement. Using Robinson as guidance, available remedies should be examined that fit the circumstances of this case and that take into consideration both Davison's and the State's interests. The determination of whether circumstances have changed is a factual determination better made by the trial court. Therefore, we reverse and remand for further proceedings to determine the appropriate remedy.

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

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

       The Fifth Amendment to the United States Constitution states that "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Article I, section 8 of the Wisconsin Constitution states that "no person for the same offense may be put twice in jeopardy of punishment."

       The two relevant battery statutes are Wis. Stat. § 940.19(6), which provides in part: "Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class D felony"; and Wis. Stat. § 940.20(1) governing battery by prisoners, which provides: "Any prisoner confined to a state prison or other state, county or municipal detention facility who intentionally causes bodily harm to an officer, employee, visitor or another inmate of such prison or institution, without his or her consent, is guilty of a Class D felony."

       The statutory elements of Wis. Stat. § 940.19(6) are: (1) the defendant caused bodily harm, (2) the defendant intended to cause bodily harm, (3) the defendant's conduct created a substantial risk of great bodily harm, and (4) the defendant knew that (his) (her) conduct created a substantial risk of great bodily harm. Wis JI — CRIMINAL 1226. In contrast, the statutory elements of Wis. Stat. § 940.20(1) are: (1) the defendant was a prisoner, (2) the defendant intentionally caused bodily harm, (3) the victim was a visitor to the institution, (4) the defendant caused bodily harm without consent of the victim, and (5) the defendant knew the victim was a visitor of the institution and knew that the victim did not consent to the causing of bodily harm. Wis JI — CRIMINAL 1228.

       The phrase "or equally serious" was added by 1993 Wis. Act 441, § 2.

       The above quote from State v. Vassos, 218 Wis. 2d 330, 339, 579 N.W.2d 35 (1998), is taken from the comment to Wis. Stat. § 339.66 (the precursor of Wis. Stat. § 939.66). Section 939.66 can be traced to the comprehensive revision of the criminal code in ch. 696, Laws of 1955.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tito J. Long, Defendant-Appellant.

    Court of Appeals

      No. 01-1147-CR.

      Submitted on briefs March 21, 2002.—

      Decided April 24, 2002.

    2002 WI App 114
    (Also reported in 647 N.W.2d 884.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Ann T Bowe of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 9-26-02.

   BROWN, J.

¶ 1. Tito J. Long opened fire in a crowded bar, resulting in a conviction of first-degree intentional homicide, party to a crime, while using a dangerous weapon and ten counts of recklessly endangering safety. He argues that evidence of gang affiliation is only admissible if the State's theory of the case is that the crime was gang-related. Because this was not a gang-related crime, Long argues that the gang-affiliation evidence was irrelevant and prejudiced the jury. We hold that evidence of gang affiliation was properly admitted in this case to suggest the possible bias of the witnesses in shaping their testimony.

¶ 2. Long also claims that the trial court erred by-allowing the State to present testimony from an eyewitness who was not found or identified until after the trial had begun. .We determine that the State demonstrated good cause for failing to locate the eyewitness. Also, because the defense was afforded the opportunity to interview the eyewitness before he testified, Long's due process right to fundamental fairness in the trial process was not compromised. Finally, Long claims he is entitled to a new trial because the trial court erred in refusing to grant his request to give the jury a falsus in uno instruction. We affirm the trial court's exercise of discretion in denying the request.

¶ 3. On May 25, 2000, after an eight-day trial, a jury found Long guilty of eleven crimes: one count of first-degree intentional homicide, party to a crime, while using a dangerous weapon; nine counts of first-degree recklessly endangering safety, party to a crime, while using a dangerous weapon; and one count of second-degree recklessly endangering safety, party to a crime, while using a dangerous weapon.

¶ 4. These convictions stem from Long's alleged conduct of firing multiple gunshots inside a crowded Racine bar, Leslie's Continental Bar, at approximately 1:00 a.m. on April 25, 1999. Bar patron Julian Barkley was killed by a single gunshot wound to the heart. Long's gunfire also allegedly resulted in wounds to Avery Thomas, Christopher Mayfield and Jeremy Koker and endangered the safety of other people in the immediate vicinity.

¶ 5. The State's theory was that Long pulled out a Glock 9-mm semiautomatic handgun and fired multiple times at Thomas after Thomas had walked up to Long in the bar and punched Long in retaliation for an incident earlier in the day. Under the State's theory, Barkley was shot and killed by a bullet that Long had intended for Thomas. The defense theory was that someone else in the bar, not Long, fired the gunshots.

¶ 6. At trial, Thomas testified that on the afternoon of April 24, 1999, he and Long had a physical confrontation in a Walgreens parking lot. Thomas said Long accused him of stealing a gun from Long. Thomas claimed that Long was beating him while holding a gun in his hand until police came and the parties ran.

¶ 7. The afternoon confrontation between Long and Thomas resumed that night at Leslie's bar. By midnight, the bar was crowded and noisy. Witnesses estimated that anywhere from fifty to one hundred persons were inside the small bar. Thomas arrived at the bar with Keyantea Milton and Falandric Williams (nicknamed "Prume"). Thomas testified that he initially was denied entry for lack of proper identification. He said he later got inside the bar briefly and spotted Long but was made to leave for bringing in liquor.

¶ 8. Before entering the bar a third, fateful time, Thomas apparently spoke to Milton about fighting Long and directed Milton to have Christopher Mayfield come outside. According to Mayfield, Thomas asked if Mayfield had a gun that Thomas could use to retaliate against Long for the earlier incident. Thomas denied making such a request. Thomas and Mayfield both testified that Mayfield accompanied Thomas when he entered the bar a third time.

¶ 9. Three of the State's witnesses described the events that transpired next, including the identification of Long as the shooter. Thomas testified that he walked up to Long, said a few words and punched Long in the face. He said Long "rock[ed] back a couple of feet" after Thomas punched him. Then Long "[p]ulled out a gun" somewhere "from his side" and "got to shooting." Although Thomas said he did not get a good look at the black handgun, he said it resembled Exhibit 9 at trial, the 9-mm Glock handgun that Long would later give to police. Thomas testified that he was wounded in the left index finger and right forearm as he turned to run. Thomas told police that Long shot directly at him from about eight feet away. Thomas told police that someone said Mayfield shot back over Thomas' head after Long began shooting.

¶ 10. Mayfield testified that Long shot at Thomas with a black gun and continued to shoot at Thomas while pursuing Thomas through the bar. Mayfield said he heard up to five shots and was himself shot in the left thigh.

¶ 11. On cross-examination of police investigator Mark Sorensen, Long elicited testimony that Mayfield "had a beef' with Long and Long's friends at some point in 1999 before the April 24, 1999 shooting. On cross-examination of police investigator William Warming-ton, Long elicited testimony that police had information dating two months before the shooting suggesting that Mayfield "wanted to do harm" to Long.

¶ 12. Falandric Williams also testified to witnessing the shooting inside the bar. He said that while ordering a drink at the bar, he heard "a loud slap or punch" and turned to see Thomas "jump[] back" from Long and "throw his hands up" as if in a boxer's stance. Williams testified that he then heard gunshots and saw Long pointing a black Glock handgun forward. He said Long's hand "jerk[ed] back" upon firing the gun. He said he did not see Mayfield with a gun.

¶ 13. Other witnesses reported hearing multiple shots, both inside and outside of the bar, but none testified to seeing any shooter. Rose Barkley, the mother of the decedent, testified that two to three days after the shooting, Long visited her house. She said that when she showed Long her son's bloodstained glasses, Long cried, told her he was sorry and that "he believed that he was the one [who] shot Julian." She said that she told investigator Warmington of Long's statement. Warm-ington testified that Barkley did not say that- Long confessed to shooting her son but that Long had cried the hardest about it and had apologized to her. Other impeachment evidence introduced at trial, including testimony about gang affiliations of Long and some of the witnesses, is discussed below.

Admissibility of Gang Affiliations

¶ 14. At a pretrial hearing, Long moved to exclude evidence that certain witnesses were affiliated with either the "Sixth Ward" or "One Deuce" faction of the Gangster Disciples. Long also sought to exclude expert testimony from investigator Warmington on how such affiliations are manifested and the existence of a street code of silence among gang members in relating to police. The prosecutor argued that evidence of gang ties was relevant to show bias in witness testimony and would influence witness perceptions of the events as they occurred in the bar. The prosecutor also outlined Warmington's background in gang-related matters, highlighting his experience at the Sixth Street community policing house.

¶ 15. The trial court accepted the State's position that evidence of gang ties of witnesses could assist the jury in determining credibility, indicating that such evidence would require as a predicate that the witness testify. The court also concluded that Warmington was properly qualified as an expert on how gang affiliations are manifested, but disallowed any discussion regarding a street code of silence among witnesses.

¶ 16. On appeal, Long argues that evidence of gang affiliations among witnesses was improper character evidence or, alternatively, constituted inadmissible "other acts" evidence against him. He claims this evidence was unfairly prejudicial to him and was irrelevant to the State's theory of the case. In support, he cites to the fact that the State never alluded to the gang evidence in its opening or closing statements. Indeed, the State agrees that the simmering dispute between Long and Thomas concerned non-gang-related matters.

¶ 17. The admissibility of evidence is within the sound discretion of the trial court. State v. Brewer, 195 Wis. 2d 295, 305, 536 N.W.2d 406 (Ct. App. 1995). The decision of the trial court will not be reversed on appeal if there is a reasonable basis for the decision and it was made in accordance with accepted legal standards and with the facts of record. Id. We determine that the trial court admitted the evidence of gang ties on the reasonable basis that such affiliations might color the testimony of the various witnesses. We acknowledge Long's concern that evidence of a person's gang ties may imply that the person is of questionable character and perhaps that the person has engaged in prior bad acts, if not criminal conduct. Nonetheless, evidence that a witness belongs to an organization, such as a street gang, is admissible to impeach the witness's testimony by showdng bias. We find instructive the following comments from the United States Supreme Court:

Bias is a term used in the "common law of evidence" to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike or fear of. a party, or by the witness' self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence [that] might bear on the accuracy and truth of a witness' testimony ....
[Thus, a] witness' and a party's common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.

United States v. Abel, 469 U.S. 45, 52 (1984). Moreover, the type of organization in which a witness and a party share membership may be relevant to show the source and strength of the witness's bias. Id. at 54. Thus, in Abel, the Supreme Court held that the government was properly allowed to impeach the testimony of a defense witness by extrinsic evidence that the witness and the defendant both belonged to the Aryan Brotherhood, "a secret prison sect sworn to perjury and self-protection." Id.

¶ 18. Wisconsin law is in accordance with the principle set forth in Abel. Our supreme court has stated that "[t]he bias or prejudice of a witness is not a collateral issue [,] and extrinsic evidence may be used to prove that a witness has a motive to testify falsely." State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978). Although Williamson did not address the use of gang affiliation to prove a motive to testify falsely, we determine that the admission of such evidence is a logical extension of its holding.

¶ 19. We now apply the law to the facts at hand. For a witness's gang affiliation to be relevant to show bias in favor of Long, the State was required to establish Long's gang affiliation. See United States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir. 2000). Of the State's thirty trial witnesses, only Mayfield identified Long as affiliated with a gang, specifically, the "Sixth Ward" faction of the Gangster Disciples. In addition, Long himself elicited investigator Warmington's opinion that Long belonged to the "Sixth Ward" faction. This sufficiently established Long's affiliation and provided the basis for the State to use the similar affiliations of other witnesses to impeach their testimony.

¶ 20. For example, bar patrons Jeremy Koker and Shawnte Williams acknowledged standing on either side of Long at the back stairs of the bar when the shooting began. Yet both Koker and Williams suggested that the shots erupted from somewhere else in the room and that they did not see any gun or shooter. Williams professed no recollection of telling police that the shots had come from right next to him, causing his ears to ring. Evidence that Koker, Williams and Long were affiliated with the same "Sixth Ward" gang faction could give jurors good reason to question the credibility of Koker and Williams on where the shots originated and, by inference, on their assertions that they did not see Long fire any shots.

¶ 21. Additionally, witness Mark Coldtrain was also affiliated with the "Sixth Ward." Evidence of his gang ties to Long undercut his suggestion to police that Mayfield, not Long, had fired the shots inside the bar.

¶ 22. The admissibility of gang affiliation evidence for impeachment purposes is not altered by the fact that Koker, Williams and. Coldtrain were called as State witnesses. "[T]he credibility of a witness may be attacked by any party, including the party calling the witness." Wis. Stat. § 906.07 (1999-2000).

¶ 23. Nevertheless, Long argues the probative value of the gang affiliation evidence was outweighed by the risk of unfair prejudice and confusion of the issues. Our careful review of the record, however, supports the State's response that the prosecutor did not belabor the point of any witnesses' gang associations, including Long's. After Warmington identified Koker, Williams and Coldtrain as affiliated with the same "Sixth Ward" faction as Long, the investigator spoke in general terms about how clothing colors, tattoos, and hand signs enable authorities to link individuals to gang factions. Furthermore, as Long concedes, the witnesses' gang activities did not play a prominent role in either the State's opening or closing arguments. Therefore, we are not convinced that the evidence of gang affiliations so permeated the trial as to create a risk of unfair prejudice or confusion of the issues.

Testimony of William Warmington

¶ 24. Long also complains that investigator Warmington was not qualified pursuant to Wis. Stat. § 907.02 to testify as an expert on how gang affiliations are manifested. On direct examination, Warmington described the different factions of the Gangster Disciples in Racine, identified State witnesses and their ties to specific factions and explained the particulars of gang dynamics. He only identified Long's "Sixth Ward" affiliation when Long elicited the testimony as an attempt to discredit the testimony against him of rival gang member Mayfield. He also said that gang members are reluctant to admit their gang affiliations to police but are more willing to identify rival gang members and implicate them in criminal activity.

¶ 25. Under Wis. Stat. § 907.02, "if a witness is qualified as an expert and has specialized knowledge that is relevant because it will assist the trier of fact to understand the evidence or determine a fact in issue, the expert's analysis or opinion will normally be admitted into evidence." State v. Watson, 227 Wis. 2d 167, 187, 595 N.W.2d 403 (1999). The determination of whether an expert's testimony will assist the fact finder to understand the evidence or to resolve a fact in issue "is a discretionary decision of the [trial] court." Id. at 186. We will uphold the decision of the trial court if it examined the facts of record, applied a proper legal standard and employed a rational process to reach a reasonable conclusion. Id.

¶ 26. We have no doubt whatsoever that investigator Warmington was properly qualified by training and experience to testify about gang activity in Racine. Warmington is a sixteen-year police veteran who has received formal "basic and advanced gang training" and has worked in the street crimes unit specializing in gang activities. In addition, he was assigned to the community policing house in the "Sixth Ward" district where he worked with probation agents and became familiar with the neighborhood's activities. In the two years prior to this incident, he was the lead investigator in six gang-related homicides and investigated more than one hundred gang-related shootings. We agree with the trial court's conclusion that Warmington's training and experience compare favorably to those of the officer who was properly qualified as a youth-gang expert in State v. Whitaker, 167 Wis. 2d 247, 257, 481 N.W.2d 649 (Ct. App. 1992).

Testimony of Falandric Williams

¶ 27. Long asserts that he is entitled to a new trial based on the trial court's error in allowing the State to present the testimony of Falandric Williams, who was not named as a witness until the fourth day of trial. Prior to the testimony of Williams, only Thomas and Mayfield had placed a gun in Long's hand. They had been impeached by the records of their prior convictions amassed at relatively young ages. In addition, a witness overheard Mayfield describe Long as a "bitch ass nigger" and Thomas was overheard to be looking for a "cannon" because he was "fitting to handle [his] business." Williams, who affiliated with "Villa Street," a third faction of the Gangster Disciples, thus was a neutral third person who placed the gun in Long's hand. Long argues that the State failed to demonstrate good cause for not locating and naming Williams on its pretrial witness list and that the court was required to exclude Williams under Wis. Stat. § 971.23(7m)(a).

¶ 28. Williams' connection to the case first arose under the moniker "Prume" in a police report that was generated after the shooting and turned over to the defense as part of discovery. At this early stage of the investigation, it is unclear whether the police were able to link this nickname to Williams. At some point, however, the link was established and police were actively looking for Williams. Williams, however, was wanted on outstanding warrants for unrelated matters and, by his own admission, was actively avoiding the police, even to the extent of fleeing when police pursued a vehicle that he was driving.

¶ 29. Only when Mayfield testified on the second day of trial did it become apparent that Williams would be a crucial witness. Mayfield referred to a person named "Prune" (also called "Prume") as being in the company of Thomas outside the bar before the shooting. Mayfield was unable to connect "Prune" with the name "Williams" until the next day when shown his picture by the prosecutor.

¶ 30. On May 18, 2000, the fourth day of trial, the prosecutor moved to add Williams to the State's witness list. The prosecutor said she had gone to the jail the day before to obtain Williams' photo and discovered that Williams was in jail, apparently on a probation or parole hold. She said Warmington had just interviewed Williams as reflected in a report that the State was giving to defense counsel. It also was established that Williams had been in custody once before since the shooting— from June 26, 1999, to July 19, 1999.

¶ 31. The trial court granted the motion to allow Williams' testimony, finding that the police had made a serious effort to locate Williams and that Williams was actively avoiding discovery. The trial court also concluded that the police failure to discover Williams when he was jailed in June and July was not for lack of due diligence since "that was still at the very beginnings of the basic investigation that was going on" in this case. The defense was then allowed to interview Williams before he testified on the fifth day of trial.

¶ 32. Pursuant to Wis. Stat. § 971.23(l)(d), upon demand by the defense, a prosecutor must disclose within a reasonable time before trial a list of witnesses and their addresses whom the district attorney intends to call at trial, other than impeachment or rebuttal witnesses. This duty applies to the extent that the information is within the possession, custody or control of the State. Sec. 971.23(1). If during trial a prosecutor discovers the names of additional witnesses that he or she intends to call, the prosecutor must notify the defense. Sec. 971.23(7).

¶ 33. Wisconsin Stat. § 971.23(7m)(a) provides that as a sanction for noncompliance with the duty to disclose, the court "shall exclude any witness not listed. . . unless good cause is shown for failure to comply." Under this provision, the court may grant the opposing party a recess or continuance. If good cause is not shown, exclusion of the witness is mandatory. See State v. DeLao, 2001 WI App 132, ¶ 28, 246 Wis. 2d 304, 629 N.W.2d 825, aff'd, 2002 WI 49, 252 Wis. 2d 289, 634 N.W.2d 480. The burden to show good cause rests with the State and whether it has satisfied this burden is a question of law that we review de novo. Id. at ¶ 23.

¶ 34. We do not understand the State to argue that no discovery violation occurred here. Rather, the State contends there was good cause for the violation based upon the enormity of the pretrial investigation involving one hundred possible witnesses and Williams' own efforts to evade police and avoid testifying. Long asserts that the State's purported due diligence in trying to locate Williams is belied by the fact that Williams had been in jail for a month on two occasions before trial. For support, Long cites to Jones v. State, 69 Wis. 2d 337, 348-49, 230 N.W.2d 677 (1975), holding that the prosecutorial unit, which includes both the district attorney's and law enforcement offices, must be viewed as one for the purposes of discovery.

¶ 35. Under the facts of this case, we determine that the State has met its burden to show good cause why it failed to place Williams on its witness list. The State had been investigating a substantial number of witnesses on an ongoing basis and had regularly provided the defense with the names of witnesses as it learned them. At some point, Williams' name must have surfaced during the investigation because Warmington testified that he had known Williams was "Prume" for about one year and that police had been trying to locate him. However, Williams, as he testified at trial, had avoided police because he did not want to become involved or testify in the case. Without being able to interview Williams, the State could not determine what value he had, if any, as a potential witness.

¶. 36. The fact that Williams had been in jail on two occasions before trial does not defeat the State's exercise of due diligence in looking for him. During Williams' incarceration, there was no indication that he might be a witness of greater importance than any other of the numerous witnesses being sought. In such a case, spot-checking jail records to see if he may have been apprehended on an unrelated warrant was a reasonable exercise of due diligence.

¶ 37. The present case is thus distinguishable from DeLao. In that case, the State failed to timely disclose the defendant's recorded statements because the police failed to alert the prosecutor of their existence in police possession before trial. DeLao, 2001 WI App 132 at ¶ 6. The value of those statements was known and, if admitted, would have impeached the defendant's testimony. The court imputed the knowledge of the police to the prosecutor, viewing them as one prosecutorial unit. Id. at ¶ 27. Imthe present case, the existence of Williams' value as a witness was not known until after trial began. We are not compelled, therefore, to apply the rule of DeLao to this case. We determine under these facts the State has met its burden to justify its failure to place Williams' name on the witness list.

¶ 38. Having concluded that good cause existed for the late revelation of Williams as a witness, we do not see that this resulted in trial by ambush. See State v. Guzman, 2001 WI App 54, ¶ 22, 241 Wis. 2d 310, 624 N.W.2d 717, review denied, 2001 WI 88, 246 Wis. 2d 166, 630 N.W.2d 219 (Wis. May 8, 2001) (No. 99-2249-CR). The trial court properly granted a recess to allow Long to interview Williams. Long makes no complaint that this opportunity was insufficient to prepare an adequate cross-examination of Williams or to pursue an investigation of the information he provided.

The Falsus in Uno Instruction

¶ 39. Finally, Long seeks a new trial on the ground that the trial court wrongly denied his request for a falsus in uno instruction directed at State witnesses Avery Thomas and Rose Barkley. The falsus in uno instruction is set forth in Wis JI — Criminal 305:

If you become satisfied from the evidence that any witness has willfully testified falsely as to any material fact, you may disregard all the testimony of the witness which is not supported by other credible evidence in the case.

Long concedes that the falsus in uno instruction is disfavored in the law. State v. Lagar, 190 Wis. 2d 423, 433, 526 N.W.2d 836 (Ct. App. 1994). Nevertheless, he asserts that the instruction is applicable in this case because the false testimony of Thomas and Barkley was both willful and intentional. See id.

¶ 40. Barkley, the mother of the homicide victim, testified that Long had confessed to her a couple of days after the shooting. She said she told investigator Warm-ington of Long's statement. Warmington said Barkley did not tell him that Long confessed to shooting her son but did tell him that Long had cried the hardest about it and had apologized to her.

¶ 41. We do not agree that the discrepancy in the testimony between Warmington and Barkley manifests willful and intentional falsification by Barkley. The discrepancy may well be attributable to possible mistake or misunderstanding. In that event, resolution of the inconsistency is for the jury in determining witness credibility and is not the basis for a falsus in uno instruction. See State v. Robinson, 145 Wis. 2d 273, 281, 426 N.W.2d 606 (Ct. App. 1988) (discrepancies in testimony attributable to defects of memory or mistake are no basis for rejecting a witness's testimony entirely).

¶ 42. Long also argues that a falsus in uno instruction should have been directed at Thomas because Thomas had lied to police about his earlier altercation with Long, telling them that it occurred somewhere else and was "about a woman" rather than a gun theft. In addition, Thomas failed to tell police that prior to being shot "he struck Long without provocation." Thomas later told the police the truth, that the prior incident concerned Long's claim that Thomas had stolen a gun and he eventually told police about punching Long in the bar.

¶ 43. We agree with Long that the truthfulness of the testimony of Thomas is in question. However, the impeachment of a witness with prior statements does not necessarily mean that a falsus in uno instruction is appropriate. Lagar, 190 Wis. 2d at 434. The trial court had the benefit of observing the actual testimony of Thomas and could determine whether the instruction was appropriate. After assessing Thomas' testimony, the trial court obviously concluded that the jury would be able to properly assess Thomas' credibility if given the general instruction on witness credibility contained in Wis JI — Criminal 300. We see no error in the trial court's discretionary decision refusing to give the instruction.

¶ 44. In sum, we conclude that the evidence of gang affiliations between the witnesses and Long was properly admitted to show witness bias. Investigator Warmington was properly qualified as an expert witness on gang dynamics. The testimony of Williams was proper because the State showed good cause to explain its failure to place him on the witness list. Finally, the inconsistencies in the testimony of Barkley and Thomas were not so willful and intentional as to require a falsus in uno instruction.

By the Court. — Judgment affirmed.

       On July 3, 2000, the trial court sentenced Long to life imprisonment plus five years on the homicide conviction, setting a parole eligibility date of July 3, 2022. The court imposed six-year prison terms on each of the nine convictions of first-degree reckless endangerment and a three-year prison term on the one conviction of second-degree reckless endangerment, all of which run concurrently with each other and with the life term.

       Mayfield admitted to affiliation with the rival faction "One Deuce" and other testimony indicated that Mayfield and Long "had a beef."

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

       Twenty-year-old Thomas admitted to twelve prior convictions and twenty-four-year-old Mayfield admitted to eleven prior convictions as an adult and three juvenile adjudications.

       Warmington testified on cross-examination that police were aware that Falandric Williams was "Prume" for about one year.


author: DEININGER, J.

text:
    Michael F. Johnson and Debra J. Thorstad, Plaintiffs-Appellants, v. Amanda A. Ziegler, American Family Mutual Insurance Company, and Progressive Northern Insurance Company, Defendants, DEC International, Inc., Defendant-Respondent.
    Court of Appeals

      No. 00-3545.

      Submitted on briefs June 11, 2001. —
    Decided April 25, 2002.

    2002 WI App 103
    (Also reported in 648 N.W.2d 480.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert J. Kay and Robert A. Mich, Jr. of Kay & Andersen, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Andrew J. Clarkowski of Axley Brynelson, LLP, Madison.
    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review denied 7-26-02.

   DEININGER, J.

¶ 1. Michael Johnson and Debra Thorstad appeal a judgment which awarded DEC International, Inc., $92,118.69 on its subrogation claim for medical benefits it paid on Johnson's behalf. DEC administered a self-funded benefit plan under the federal Employee Retirement Income and Security Act (ERISA). Johnson obtained a $250,000 settlement for personal injuries he sustained in a traffic accident caused by Amanda Ziegler. The circuit court granted DEC'S motion for summary judgment, granting DEC the full amount of its subrogation claim, with no reduction or offsets under the "made whole" doctrine or for attorney's fees Johnson incurred in obtaining the settlement. Johnson claims the court erred in so doing. We disagree and affirm.

BACKGROUND

¶ 2. The parties filed cross-motions for summary judgment and neither asserts that any material facts are in dispute. DEC's ERISA plan document includes the following provisions under a heading entitled "Sub-rogation":

This Plan will be reimbursed for all benefit payments made as the result of Injuries or Illnesses which are caused by the actions of a third party and which give rise to a court ordered financial award or out-of-court settlement to a Covered Individual from a third party tort-feasor, person or entity. This Plan will provide benefits, otherwise payable under this Plan, to or on behalf of the Covered Individual only on the following terms and conditions:
1. In the event of any payment under this Plan, the Plan shall be subrogated to all of the Covered Individual's rights of recovery against any person or organization and the Covered Individual shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Covered Individual shall do nothing after loss to prejudice such rights. The Covered Individual shall agree to cooperate with the Plan and/or any representatives of the Plan in completing such forms and in giving such information surrounding any accident as the Plan or its representatives deem necessary to fully investigate the incident.
2. The Plan is also granted a right of reimbursement from the proceeds of any settlement, judgment or other payment obtained by the Covered Individual. This right of reimbursement is cumulative with and not exclusive of the subrogation right granted in 1 above, but only to the extent of the benefits paid by the Plan.
3. The Plan, by payment of any proceeds, is granted a lien on the proceeds of any settlement, judgment or other payment received by the Covered Individual, and the Covered Individual consents to said lien and agrees to take whatever steps are necessary to help the Plan Administrator secure such lien.
4. The subrogation and reimbursement rights and liens apply to any recoveries made by the Covered Individual as a result of the Injuries sustained or Illness suffered, including but not limited to the following:
a. Payments made directly by the third party tort-feasor or any insurance company on behalf of the third party tort-feasor or any other payments on behalf of the third party tort-feasor.
6. No Covered Individual shall make any settlement which specifically excludes or attempts to exclude the medical expenses paid by the Plan.
7. The Plan's right of recovery shall be a prior lien against any proceeds recovered by the Covered Individual, which right shall not be defeated nor reduced by the application of any so-called "Made-Whole Doctrine," "Rimes Doctrine" or any other such doctrine purporting to defeat the Plan's recovery rights by allocating the proceeds exclusively to non-medical expense damages.
8. No Covered Individual shall incur any expenses on behalf of the Plan in pursuit of the Plan's rights, specifically, no court costs nor attorney's fees may be deducted from the Plan's recovery without the prior express written consent of the Plan. This right shall not be defeated by any so-called "Fund Doctrine" or "Common Fund Doctrine": or "Attorney's Fund Doctrine."

(Emphasis added.)

¶ 3. Johnson was seventeen at the time of the accident and turned eighteen about three months later. His settlement with Ziegler's insurer did not itemize amounts for medical expenses or other damages, nor did it allocate damages between Johnson and his mother. Her claim was for care she provided to her son after his discharge from the hospital, for lost wages and for the loss of her son's society and companionship. DEC admitted during discovery that "Johnson's damages from the collision described in [his] complaint exceed $250,000." DEC paid out $92,118.69 for medical expenses Johnson incurred as a result of the injuries he sustained in the accident. The parties stipulated that $100,000 of the settlement proceeds could be immediately disbursed to Johnson and Thorstad, and that the remaining $150,000 would be held in trust until the subrogation issue was resolved.

¶ 4. Both parties moved for summary judgment. Johnson asked the court to deny DEC's subrogation claim in its entirety under the "made whole" doctrine, or in the alternative, to reduce it by one-third for the attorney's fees Johnson incurred in obtaining the settlement. The circuit court denied Johnson's motion and awarded judgment to DEC for the whole of its claim, plus interest and costs. Johnson appeals.

ANALYSIS

¶ 5. We review a circuit court's grant or denial of summary judgment de novo, owing no deference to the trial court's decision. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). Even though our review is de novo, we are aided in this case by the trial court's thoughtful analysis. See Katzman v. Ethics Bd., 228 Wis. 2d 282, 291, 596 N.W.2d 861 (Ct. App. 1999). "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995); Wis. Stat. § 802.08(2) (1999-2000). When both parties move for summary judgment and neither argues that factual disputes bar the other's motion, the" 'practical effect is that the facts are stipulated and only issues of law are before us.'" See Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1991) (quoted source omitted).

¶ 6. The first skirmish between the parties is over whether we must defer to the plan administrator's interpretation of the subrogation provisions at issue. DEC maintains that we should, citing Newport News Shipbuilding Co. v. T.H.E. Insurance Co., 187 Wis. 2d 364, 372, 523 N.W.2d 270 (Ct. App. 1994) ("Courts give substantial deference to the interpretation of an ERISA plan by the plan's administrator when the plan vests in the administrator discretion to interpret the plan."). Johnson counters that the DEC plan vests discretion in the administrator only with respect to review and decisions regarding "claims to benefits" under the plan. See Wal-Mart Stores, Inc. Assocs. Health and Welfare Plan v. Wells, 213 F.3d 398, 403 (7th Cir. 2000) (declining to defer to an administrator's interpretation of a subrogation provision where "there is no reference to discretion in the part of the plan documents that deals with the plan's right to reimbursement"). We concur with the trial court's observation, however, that the disputed subrogation provisions of the DEC plan are not ambiguous. Our interpretation and result would thus be the same under any standard of review.

¶ 7. The first disputed provision is one which grants to the plan a "prior lien against any proceeds" recovered by Johnson, "which right shall not be defeated nor reduced by the application of any so-called 'Made-Whole Doctrine,' 'Rimes Doctrine' or any other such doctrine purporting to defeat the Plan's recovery rights by allocating the proceeds exclusively to non-medical expense damages." We concluded in Newport News that "the right of a[n ERISA] plan beneficiary to be made whole before the plan can recoup its payments 'exists only when the parties are silent.'" Newport News, 187 Wis. 2d at 371 (citation omitted). Here, the plan is far from silent on the issue.

¶ 8. The DEC plan language plainly addresses, and disavows, any right on Johnson's part to be made whole prior to the plan's recovery of benefits paid. Johnson asserts, however, that an ambiguity arises from the disjunctive reference to "any other such doctrine purporting to defeat the Plan's recovery rights by allocating the proceeds exclusively to non-medical expense damages." Johnson claims that the provision can be read to "merely bar[] a Covered Individual from allocating a settlement exclusively to non-medical expense damages," a matter also addressed in the preceding paragraph of the plan. Thus, in Johnson's view, the disclaimer of the "made whole" rule is ambiguous and must fail, and the plan is subject to the "default" rule which would render Wisconsin's "made whole" doctrine applicable. See Ninaus v. State Farm Mut. Auto. Ins. Co., 220 Wis. 2d 869, 875, 584 N.W.2d 545 (Ct. App. 1998).

¶ 9. We reject Johnson's strained reading of the language at issue. By asserting its priority claim to proceeds recovered by a plan beneficiary, and by expressly disclaiming application of the "Made-Whole Doctrine" and the "Rimes Doctrine," we fail to see how the plan drafter could have more clearly communicated the plan's "first-dollar" subrogation rights. The additional, disjunctive reference to other legal doctrines that might otherwise "defeat the Plan's recovery rights by allocating the proceeds exclusively to non-medical expense damages," takes nothing away from the specific disclaimers of the "made whole" and "Rimes" doctrines. See Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 638, 586 N.W.2d 863 (1998):

The word "or," in the phrase "ownership, maintenance or use," is unambiguous. The meaning of "or" is plain: "or" is a connector of alternative choices in a series. In an everyday setting, "or" is interpreted dis-junctively. A reasonable person in the insured's position would not think that "or" means "and"....

¶ 10. Johnson also contends that DEC's claim for reimbursement of medical benefits it paid must fail because the settlement received from Ziegler's insurer covered both his and his mother's claims. Johnson points out that his mother was not a DEC plan participant, and thus, the plan's subrogation provisions would not apply to her. According to Johnson, the plan therefore "has no authority to compel [him or his mother] to return any portion of the settlement proceeds to DEC." We agree with DEC, however, that the plan's provision that it has "a right of reimbursement from the proceeds of any settlement, judgment or other payment obtained by the Covered Individual" (emphasis added), is sufficient to reach Johnson's interest in any joint or aggregate settlement.

¶ 11. Thus, unless it appears that the plan's recovery of some $92,000 from the settlement would exceed Johnson's share of the proceeds, the fact that Thorstad may also have something coming from the joint settlement cannot defeat DEC's recovery. The trial court said in its decision that "[i]t seems obvious to this court that Ms. Thorstad cannot logically claim a right to more than 50% of this settlement." Johnson is critical of the court's conclusion, asserting that it was error for the court to make a finding on the amount of Thorstad's damages, that issue being a matter for a jury to determine. We disagree that the court made a factual finding regarding the amount of damages to which Thorstad was entitled. Rather, based on the summary judgment submissions, the trial court concluded, as do we, that no reasonable jury could reasonably find that Thorstad's damages exceeded Johnson's or approached $160,000.

¶ 12. Johnson suffered "multiple pelvic fractures" in the accident and was hospitalized for over three weeks, undergoing three surgeries. He was confined to a wheelchair for several more weeks, and used crutches for six additional weeks. His medical expenses exceeded $90,000. Thorstad's claim was based on the extensive care she provided Johnson for about four weeks after his release from the hospital, and some lesser assistance she provided him for the additional six weeks he remained on crutches. She also notes in her affidavit that she missed about two months of work during this period, but she does not disclose the amount of wages lost, nor does she explain why she should be compensated both for the services she provided to her son and for her opportunity costs in doing so. Finally, Thorstad avers that she believed she had a claim for the loss of Johnson's society and companionship "during his recovery." This latter element of damages could not encompass any period following Johnson's eighteenth birthday, however, which occurred about eleven weeks after his accident. See Wells Estate v. Mt. Sinai Med. Ctr., 183 Wis. 2d 667, 677, 515 N.W.2d 705 (1994).

¶ 13. In short, we have no difficulty concluding that, based on the undisputed facts contained in the summary judgment record, DEC's recovery of some $92,000 in medical benefits it paid on Johnson's behalf will not invade Thorstad's share of the settlement proceeds. Put another way, we conclude that Johnson has not produced sufficient evidence on summary judgment to place at issue whether Thorstad's damages exceeded his own, or the possibility that Thorstad could establish damages approaching $160,000. See Transportation Ins. Co., Inc. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 291-92, 507 N.W.2d 136 (Ct. App. 1993) ("[I]t is the burden of the party asserting a claim on which it bears the burden of proof at trial 'to make a showing sufficient to establish the existence of an element essential to that party's case.'" (citation omitted)). Therefore, Thorstad's claim to some part of the settlement proceeds does not defeat DEC'S subrogation claim.

¶ 14. Finally, we address what is arguably the most troubling aspect of the appealed judgment — the fact that the judgment permits DEC to recover its entire subrogation claim with no reduction or offset for the attorney's fees Johnson incurred in procuring his settlement. Johnson's counsel averred, and DEC does not dispute, that DEC "did not appear at any of the depositions in this case and did not assist my firm in obtaining the $250,000 settlement from Amanda Ziegler and American Family Mutual Insurance Company."

¶ 15. We concluded in Ninaus that where an ERISA plan's only participation in a personal injury suit was to assert its subrogation claim against the plaintiff, the plan had a common law obligation to " 'pay its fair share of attorney's fees and costs.'" Ninaus, 220 Wis. 2d at 888. As DEC points out, however, the plan at issue in Ninaus had no provision similar to the one in DEC'S plan disavowing any deduction for attorney's fees without DEC's "prior express written consent." We specifically noted in Ninaus that the plaintiff had made no claim for an attorney's fees reduction on benefits recovered for a different year, one in which plan language expressly provided "that there shall be no offset for the insured's attorneys' fees in procuring a settlement or award." Id. at 884 n.5. Ninaus is thus of no assistance to Johnson on the present facts.

¶ 16. The federal precedents on which Johnson seeks to rely also apply the "common fund" doctrine as a default rule, under which a plan's recovery is reduced by a pro rata share of the beneficiary's attorney's fees when the plan is silent on the matter. For example, in Wells, 213 F.3d 398, the court concluded that a subro-gation provision calling for "reimbursement of 100 percent of any benefits paid to a participant," id. at 400, but which did not disclaim or disavow reductions for recovery costs, was subject to the "common fund" doctrine:

To read the Wal-Mart plan literally would allow the plan to free ride on the efforts of the plan participant's attorney, contrary to the equitable concept of "common fund" that governs the allocation of attorney's fees in cases in which the lawyer hired by one party creates through his efforts a fund in which others are entitled to share as well.

Id. at 402. The court expressly left open, however, the question of whether express plan language could override application of state or federal "common fund" doctrines. Id. at 403-04; see also Blackburn v. Sundstrand Corp., 115 F.3d 493, 496 (7th Cir. 1997).

¶ 17. The state of federal case law regarding the application of the "common fund" doctrine to ERISA subrogation claims is surveyed and analyzed in a recent law review comment: "ERISA Qualified Subrogation Liens: Should They be Reduced to Reflect a Pro Rata Share of Attorney Fees?" 104 Dick. L. Rev. 359 (2000). The author of the comment concludes:

As the law stands now, however, a company or corporation that drafts subrogation language that clearly states the plan's entitlement to 100% reimbursement will not be required to pay a pro rata share of attorneys' fees when a beneficiary pursues a third party. Courts that reduced subrogation liens to reflect a pro rata share of attorneys' fees did so with plans that had ambiguous subrogation language or no subrogation language at all.

Id. at 376. See, e.g., Ryan v. Federal Express Corp., 78 F.3d 123, 127 (3rd Cir. 1996) (reversing district court's reduction of subrogation recovery by pro rata share of attorney's fees where the "language of the subrogation provision at issue ... unambiguously requires [the beneficiaries] to pay back all the money they received from the Plan"; concluding " '[e]nrichment is not 'unjust' where it is allowed by the express terms of the ... plan'" (citation omitted)).

¶ 18. Johnson does not contend that the language of DEC's plan precluding reductions for attorney's fees from the plan's recovery of benefits is ambiguous. We conclude that permitting this express provision to override the "common fund" doctrine comports with our treatment of provisions which expressly override the "made whole" doctrine. Although we admittedly did not directly address the issue in Ninaus, honoring "common fund" opt-out provisions is also arguably consistent with our decision in that case, and with what appears to be the current state of the law in the federal courts. Accordingly, we affirm the award to DEC of its full claim, unreduced by Johnson's costs in obtaining his settlement.

¶ 19. Johnson asserts that this result is "inequitable and unconscionable." It may be the former, as the discussions by the Seventh Circuit in Wells and Blackburn suggest. But, like the author of the law review comment cited above, we conclude that if parties to an ERISA plan are to be precluded from opting out of the "common fund" doctrine because such provisions are inconsistent with ERISA's purpose, such a rule must come from the Congress or the Supreme Court. See 104 Dick. L. Rev. at 377.

CONCLUSION

¶ 20. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

       Thorstad is Johnson's mother and she shared in the settlement Johnson obtained for his personal injuries. We will

       Ziegler and her insurer, American Family Mutual Insurance Company, and Progressive Northern Insurance Company, the insurer of Johnson's motorcycle, were defendants in Johnson's lawsuit and thus appear in the caption. None are parties to this appeal, however.

       Our consideration and disposition of this appeal was stayed from August 17,2001 until March 14, 2002, due to DEC'S federal bankruptcy filing.

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

       The "made (or make) whole" doctrine provides that "[s]ub-rogation is to be allowed only when the insured is compensated in full by recovery from the tortfeasor. The insured is to be made whole, but no more than whole." Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 272, 316 N.W.2d 348 (1982).

       One purpose of ERISA is to "protect.. . the interests of participants in employee benefit plans . . . 29 U.S.C. § 1001(b).

       Johnson also requests that we direct the trial court to reconsider whether it should award him reasonable attorney's fees and costs under 29 U.S.C. § 1132(g)(1). Johnson has not succeeded in setting aside any part of the appealed judgment, however, and thus he has not become a prevailing party on any issue. Moreover, DEC has not cross-appealed the trial court's denial of its request for fees and costs under § 1132. Accordingly, there is no need for us to remand on this issue or to address it further.