author: VERGERONT, EJ.

text:
    Mineral Point Unified School District, Petitioner-Respondent, v. Wisconsin Employment Relations Commission, Respondent-Co-Appellant, Mineral Point Educational Support Personnel, Respondent-Appellant.
    Court of Appeals

      No. 01-1247.

      Submitted on briefs November 8, 2001.

    Decided January 31, 2002.

    2002 WI App 48
    (Also reported in 641 N.W.2d 701.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Mary E. Pitassi of Wisconsin Education Association Council, Madison.
    On behalf of the respondent-co-appellant, the cause was submitted on the briefs of William H. Ramsey, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Eileen A. Brownlee of Kramer of Brownlee & Infield, LLC, Fennimore.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.
   VERGERONT, EJ.

¶ 1. The Wisconsin Employment Relations Commission (WERC) decided that the Tabs technician" at Mineral Point Unified School District was a municipal employee, not a confidential employee under Wis. Stat. § 111.70(l)(i) (1999-2000), and therefore was included within the bargaining unit. The circuit court reversed that decision, and Mineral Point Educational Support Personnel (MPESP) and WERC appeal. They contend that WERC correctly decided that the labs technician position is properly included in the bargaining unit because the labs technician is not a confidential employee. We agree and reverse the circuit court's order.

BACKGROUND .

¶ 2. MPESP filed a petition with WERC to clarify the collective bargaining unit of employees within the district by a determination that the labs technician position was included in the unit. The district contended that the labs technician should be a "confidential employee" and properly excluded from the bargaining unit.

¶ 3. Under the job description the labs technician is to assist staff and facilitate computer programming and to manage technology and audio-visual (AV) equipment to meet the needs of teachers and students. The "essential functions" of the position include: installing and maintaining the computer network and offering support to users; assisting in the development of coin-puter education programs; maintaining the district's TV system, AV equipment, photocopiers, and fax machines; and assisting staff in operating AV equipment.

¶ 4. The district currently has two confidential employees, both of whom assist the district in the bargaining process.

¶ 5. At the hearing before the WERC examiner, the parties questioned Cindy Schaaf, the district's current labs technician. Schaaf testified that her current supervisors are Vincent Smith, the district's superintendent, and Ted Evans, the middle/high school principal. Schaaf s position involves building, programming, and networking computers. She also maintains all computers in the school labs and records a television program that runs in all classrooms at noon. The only circumstances under which she would feel that she needed to look at any personnel evaluations or bargaining files would be if directed by one of her supervisors.

¶ 6. Based on the testimony at the hearing, WERC made the following findings. Schaaf has not participated in preparing bargaining proposals for labor contracts, has never attended an executive session where labor relations were discussed, has never prepared any reports that would affect other bargaining units employees' personnel decisions or done any costing of collective bargaining proposals, and has not participated on behalf of the district in grievance procedures or other labor relations matters. Schaaf s position allows her to have access with total security clearance to all files on the district's computer server, including the files of the superintendent and the principal. Schaaf is the only person with full clearance to the computer files in the district. However, although Schaaf has access to computer files with confidential labor relations matters, she has never gone into the files and her duties do not require her to do so. WERC concluded that the labs technician was not a confidential position under Wis. Stat. § 111.70(l)(i) and therefore was included in the bargaining unit as a municipal employee.

¶ 7. The district sought review of WERC's decision in the circuit court. The court concluded that the record was inadequate to support WERC's findings and remanded to WERC for additional fact-finding.

¶ 8. At the hearing after remand, Schaaf, Superintendent Smith, and Principal Evans testified. Based on this testimony, WERC made the same findings it had made after the first hearing, with these added findings. In addition to Schaafs duties included in the job description for labs technician, Schaaf assists staff in opening e-mails as needed and searches for large files that can be removed when the server becomes overloaded. Schaaf has not been given a directive by any administrator to read bargaining material prepared by the district, summarize materials in preparation for a bargaining session, or assist the district's two confidential employees or administrators in preparing materials for a bargaining agreement. At Schaafs interview for the position, no one indicated that she would be dealing with documents pertaining to collective bargaining as part of her job duties. Finally, even though Evans has directed Schaaf to investigate and report any internet abuse on occasion, a district computer consultant, who is not a district employee, has the expertise to check internet use.

¶ 9. WERC again concluded that the labs technician was not a confidential employee under Wis. Stat. § 111.70(l)(i) and ordered that that position be included in the bargaining unit. One commissioner dissented, concluding that the position was confidential because the labs technician is responsible for monitoring and reporting improper employee computer usage and Schaaf is the only employee capable of performing this function.

¶ 10. The district again appealed WERC's decision to the circuit court. The court decided that it was appropriate to give due weight to WERC's conclusion of law. Applying that standard, the court stated it did not agree with WERC's conclusion that the labs technician is not a confidential employee. It therefore reversed WERC's decision and ordered the labs technician position excluded from the bargaining unit as a confidential employee.

DISCUSSION

¶ 11. Resolution of this issue involves the interpretation of Wis. Stat. § 111.70(l)(i), which provides:

"Municipal employee" means any individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial or executive employee.

Since the parties do not dispute WERC's findings of fact, the interpretation and application of § 111.70(l)(i) to the facts as found by WERC presents a question of law. Hillhaven Corp. v. DHFS, 2000 WI App 20, ¶ 12, 232 Wis. 2d 400, 606 N.W.2d 572.

¶ 12. In deciding an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency, not that of the circuit court. Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155 (Ct. App. 1993), affd, 184 Wis. 2d 645, 516 N.W.2d 730 (1994). Although we are not bound by an agency's conclusions of law, we may accord them deference. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). The parties here dispute the level of deference we should give WERC's interpretation of Wis. Stat. § 111.70(l)(i). MPESP and WERC contend the agency’s decision is entitled to great weight, while the district argues that due weight is the appropriate level.

¶ 13. Generally, we give great weight deference when: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the interpretation of the agency is long-standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. UFE Inc., 201 Wis. 2d at 284. Under great weight deference, we accept an agency's interpretation as long as it is reasonable. Id. at 287.

¶ 14. Due weight deference is appropriate when the agency has some experience in an area, but has not developed the expertise that necessarily places it in a better position to make judgments regarding interpretation of a statute. Id. at 286. Due weight deference is based primarily on the fact that the legislature has charged the agency with the enforcement of the statute in question. Id. Under due weight deference we accept an agency's interpretation as long as it is at least as reasonable as any other interpretation. Id. at 286-87.

¶ 15. The district concedes that in this case the first and third standards for applying great weight deference are met, but, it argues, the second and fourth are not. With respect to the second standard, the district contends there is no long-standing application of the statute to employees who have unrestricted access to every computer file in the possession of the employer, unrestricted access to every employee's files, and unrestricted access to the records of all internet use.

¶ 16. We disagree with the district's assertion that because some of the facts in this case differ from those in prior WERC decisions, WERC does not have a long-standing history of interpreting Wis. Stat. § 111.70(l)(i). As we have stated before when discussing this standard:

The test is not, however, whether [WERC] ... has ruled on the precise — or even substantially similar— facts in prior cases .... Rather, the cases tell us that the key in determining what, if any, deference courts are to pay to an administrative agency's interpretation of a statute is the agency's experience in administering the particular statutory scheme — and that experience must necessarily derive from consideration of a variety of factual situations and circumstances. Indeed, we have recognized in a series of cases that an agency's experience and expertise need not have been exercised on the precise — or even substantially similar — facts in order for its decision to be entitled to judicial deference.

Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 764, 569 N.W.2d 726 (Ct. App. 1997) (footnote omitted).

¶ 17. As the district concedes, "[t]here is no question that [WERC] .. . has had numerous opportunities to determine who is and who is not a confidential employee." The parties have cited to numerous decisions dating back almost twenty years in which WERC has made determinations about whether a particular position was confidential under Wis. Stat. § 111.70(l)(i). Accordingly, we conclude WERC's interpretation of this statute is of long-standing.

¶ 18. With respect to the fourth standard, the district argues that WERC's application of the term "confidential employee" to similarly situated individuals has been inconsistent.

¶ 19. In its decision in this case, WERC articulated this test for "confidential employee":

We have held that for an employee to be held confidential, the employee must have sufficient access to, knowledge of or participation in confidential matters relating to labor relations. For information to be confidential in the labor relations context, it must: (a) deal with the employer's strategy or position in collective bargaining, contract administration, litigation or other similar matters pertaining to labor relations and grievance handling between the bargaining representative and the employer; and (b) be information which is not available to the bargaining representative or its agents.
While a de minimis exposure to confidential matters is generally insufficient grounds for exclusion of an employee from a bargaining unit, we have also sought to protect an employer's right to conduct its labor relations through employees whose interests are aligned with those of management. Thus, notwithstanding the actual amount of confidential work conducted, but assuming good faith on the part of the employer, an employee may be found to be confidential where the person in question is the only one available to perform legitimate confidential work, and similarly, where a management employee has significant labor relations responsibility, the clerical employee assigned as his or her secretary may be found to be confidential, even if the actual amount of confidential work is not significant, where the confidential work cannot be assigned to another employee without undue disruption of the employer's organization.

(Citations omitted.)

¶ 20. The district contends that prior WERC decisions are inconsistent because in some cases WERC has determined that de minimis access or exposure to confidential materials was a significant ground for excluding an employee — Howard-Suamico Sch. Dist., Dec. No. 22731-A (WERC Sept. 14, 1988), and Town of Grand Chute, Dec. No. 22934 (WERC Sept. 30, 1985)— while in other cases WERC has determined that de minimis access to confidential information was insufficient to create confidential status — Waukesha County, Dec. No. 26020-A (WERC Sept. 27, 1989), and City of New Berlin, Dec. No. 13173-B (WERC Aug. 25, 1983).

¶ 21. We do not agree that these cases show that WERC's decisions are inconsistent. WERC has utilized the same analytical framework in its decisions related to confidential employees and the different results are explained by the different factual situations.

¶ 22. In Howard-Suamico, the employee was involved in costing bargaining proposals, as well as having computer access. While it is not clear from that decision whether the employee's potential access, absent the costing duties, would have been sufficient to qualify the employee as a confidential employee, in later cases WERC decided that the potential for an employee to abuse computer access was not in itself a sufficient basis for finding that employee confidential. Waukesha County, Dec. No. 26020-A (WERC Sept. 27, 1989); Elcho Sch. Dist., Dec. No. 27640-C (WERC April 25, 1997).

¶ 23. In Town of Grand Chute, WERC determined the office coordinator, who worked directly under the manager, was a confidential employee because:

[I]f the employes here were to vote to establish a collective bargaining relationship and we were to include both [secretaries] in the unit, the Employer would be left to carry on its labor relations functions without benefit of the services of a confidential employe who could perform necessary office/clerical work required by such a relationship. Therefore, although [the office coordinator] only performs minimal confidential duties now, such duties in addition to the likelihood that she will he performing additional confidential work which will necessarily result should employes vote for representation, and the fact that she will be the only employe performing such work are sufficient to exclude her from the unit as a confidential employe.

This decision is an illustration of factors that make an employee "confidential" even though there are only minimal confidential duties present. It is consistent with the principle that generally a de minimis exposure or access to confidential materials is not sufficient. It is also consistent with City of New Berlin, in which WERC found there was another employee who was not part of thf? bargaining unit who could perform the minimal confidential labor relations performed by the employee in question.

¶ 24. The district also argues that in some decisions WERC has held that the fact an employee might engage in confidential duties in the future is insufficient to create a confidential status, while in other decisions it has held that a reasonable probability that an employee might engage in such duties is sufficient to create confidential status. The district cites Village of Hales Corners, Dec. No. 27604-A (WERC Nov. 30, 1993), and Village of East Troy, Dec. No. 26553 (WERC July 16, 1990), as an example of this conflict. We see no conflict. In both cases WERC determined that the likelihood of changes in job duties was sufficient to warrant confidential employee classification under the factual circumstances of each case. Indeed, in Hales Corners, WERC cites East Troy as one of the sources of the principles upon which it is relying.

¶ 25. In short, we conclude WERC's past and present interpretations of Wis. Stat. § 111.70(l)(i) serve to provide "uniformity and consistency in the application of the statute." We thus also conclude that WERC's interpretation and application of "confidential employee" in § 111.70(l)(i) is entitled to great weight deference. We therefore must determine whether WERC's interpretation and application of the statute in this case is reasonable. The burden of proof to show that the agency's interpretation is unreasonable is on the party seeking to overturn the agency's decision; the agency does not have to justify its interpretation. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995). A decision is unreasonable if it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is without rational basis. Id. at 662.

' ¶ 26. The district argues that WERC's determination that the labs technician is not a confidential employee is contrary to the recognized reasons for excluding confidential employees from collective bargaining units — to ensure that employees with access to confidential information will not be placed in a position where their loyalties are divided, and to provide municipal employers with some measure of confidence that the confidentiality of bargaining data, planning, and strategy will not be compromised. The district contends that "access is access" and that WERC has deviated from its standard that de minimis access to confidential information is sufficient for an employee to be considered confidential.

¶ 27. We do not agree with the district's argument. WERC has consistently held that de minimis exposure alone is generally insufficient grounds for exclusion of an employee from a bargaining unit. WERC's decision in this case is not contrary to the purpose of preventing divided loyalties, because management has never asked the labs technician to do anything that would necessitate that she have a loyalty to the district that is in conflict with a loyalty to the bargaining unit; and there is no evidence the district might do so in the future. The labs technician has never been directed to open and read documents stored on the computers that pertain to collective bargaining. In addition, the superintendent does not want the labs technician to read any such documents and trusts that she will not. Therefore, including the position in the bargaining unit will not compromise the confidence the district may properly expect to have in the confidentiality of such matters.

¶ 28. The district also argues that Schaaf conducts investigation into employee computer use beyond fact-finding and makes judgments of what constitutes reportable misconduct. However, WERC found that a non-district employee was capable of checking internet use, and the testimony supports this finding. WERC's conclusion based on this finding is consistent with WERC's prior decisions that an employee is not a confidential employee when de minimis confidential work can be assigned to another employee without significant hardship to the organization.

¶ 29. WERC's interpretation is reasonable in all other respects as well. There is no evidence that its interpretation directly contravenes the words of the statute. Here the statute is ambiguous because "confidential employee" is not defined, and reasonable minds could differ as to its meaning. See Harnischfeger Corp., 196 Wis. 2d at 662. If a statute is ambiguous, an agency's interpretation cannot, by definition, be found to directly contravene it. Id. In addition, WERC's interpretation and application of the statute to the facts of this case is rationally based. It is rational to analyze the actual duties involved in a position, rather than assume without evidence that an employee would act in an unauthorized or surreptitious manner. When a minimal portion of an employee's duties may be confidential, it is rational to consider whether an employee outside the bargaining unit could perform those duties. WERC considered the facts presented, in light of the principles developed in its prior decisions, and came to a reasonable conclusion.

¶ 30. Therefore, we reverse the circuit court's order and direct that it enter an order affirming WERC's decision that the labs technician position is not a confidential employee.

By the Court. — Order reversed.

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

       There is no question that for over thirty years WERC has administered, at the legislature's direction, the statutes relating to municipal employment relations. See Wis. Stat. § 111.70(4)(d)2.a. We are also satisfied that WERC has considerable expertise in addressing issues involving bargaining units for municipal employees. See Arrowhead United Teachers Org. v. WERC, 116 Wis. 2d 580, 594, 342 N.W.2d 709 (1984).

       Although the district argues that due weight is appropriate in part because of this inconsistency, we note that we generally employ a de novo review "when an agency's position on an issue has been so inconsistent so as to provide no real guidance." UFE Inc. v. LIRC, 201 Wis. 2d 274, 285, 548 N.W.2d 57 (1996).

       As part of its decision, WERC determined that:
      [T]here was nothing in the job description for the position that indicated that the Labs Technician performs confidential labor relations duties. Moreover, the incumbent testified that she had not been asked to perform any such confidential tasks, nor had she ever reviewed the contents of confidential files or attended management meetings where labor relations matters were discussed. The District has never authorized the Labs Technician to explore the content of confidential files to which she has access. The Labs Technician has not been asked to assist the other two confidential employees in doing any confidential work. Should confidential employees require the Technician's aid in accessing or downloading confidential labor relations materials, the Technician can provide such assistance without reading and absorbing the data herself. Thus, the question of whether the Labs Technician is a confidential employee arises solely from the access this employee has to all the District's computer files and, thus, the possibility that confidential information detrimental to the District's interest could become available to the Union because the Labs Technician abused her access by reviewing the content of a confidential file.
      This is not a case where the employer is attempting to conduct its labor relations through an employee of its choice. In fact, the District in this case has given the employee in dispute no duties dealing with labor relations. We find it significant that the Superintendent testified that he hoped that Schaaf had not read his files dealing with collective bargaining or employee misconduct. This is a clear indication that the District has no intention of giving the Labs Technician confidential labor relations duties.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Raymond G. Sugden, individually and as Special Administrator of the Estate of James A. Sugden, and Albert E. Sugden, by his Guardian ad Litem, Gregory R. Wright, and Karen C. Sugden, Plaintiffs-Appellants, v. Cory R. Bock, Defendant-(In T.ct.), American Family Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 01-1284.

      Submitted on briefs November 8, 2001.

    Decided January 31, 2002.

    2002 WI App 49
    (Also reported in 641 N.W.2d 693.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gregory R. Wright of Gregory R. Wright Law Offices, S.C., Montello.
    On behalf of the defendant-respondent, the cause was submitted on the brief of David J. Pliner of Corneille Law Group, L.L.C., Madison.
    Before Vergeront, PJ., Dykman and Roggensack, JJ.

       Petition to review denied 4-22-02.

   DYKMAN, J.

¶ 1. Albert Sugden, Karen Sugden, and Raymond Sugden, individually and as special administrator of the Estate of James Sugden, appeal from an order and judgment granting the motion for summary judgment of the Sugdens insurer, American Family Mutual Insurance Company, and dismissing all of the Sugdens' claims against American Family. After an accident that killed James Sugden and injured Albert, American Family paid its policy limits to the Sugdens. The Sugdens contend, however, that they are entitled to at least an additional $25,000 by way of stacking the limits of the several policies they hold with American Family. Although each of the insurance policies contains an anti-stacking provision, the Sugdens argue alternatively that: (1) the provisions are not valid under Wisconsin law; or (2) American Family waived or is estopped from enforcing the provisions. We conclude that the anti-stacking provisions in the American Family policies are lawful under Wis. Stat. § 632.32(5)(f) (1999-2000) and that American Family has not waived nor is it estopped from asserting these provisions. We therefore affirm.

Background

¶ 2. For the purposes of American Family's motion for summary judgment, the facts are undisputed. On September 27,1998, James and Albert Sugden were bicycling on County Highway P when they were struck by an automobile driven by Cory Bock. James was killed, and Albert was injured.

¶ 3. Because Bock had no automobile insurance, the Sugdens sought to recover under the uninsured motorist provisions of their insurance policies with American Family Mutual Insurance Company. American Family had issued four automobile policies to the Sugden family on four different cars: two to James and Albert's father, Robert, one to their mother, Karen, and one to their sister, Marcella. Each policy had uninsured motorist limits of $25,000 per person and $50,000 per occurrence.

¶ 4. American Family offered to settle James's claim by making two payments totaling $50,000: $25,000 under one of Raymond's policies and $25,000 under Marcella's policy. American Family's claim representative told the Sugdens' attorney that the payments were intended to satisfy James's claim and that additional coverage remained with respect to Albert's injuries. The Sugdens accepted American Family's settlement offer under these terms.

¶ 5. The Sugdens sued both American Family and Cory Bock on January 11, 1999. American Family moved for summary judgment, arguing that it had paid the limits under its policy. The circuit court granted the motion, concluding that $50,000 "is the maximum exposure that American Family faces," and that "there is no theory of estoppel or waiver that is going to allow any kind of increase in coverage." The Sugdens appeal.

Opinion

A. Validity of Anti-Stacking Clauses

¶ 6. We review the circuit court's decision granting summary judgment under a de novo standard. Magyar v. Wisconsin Health Care Liability Ins. Plan, 2001 WI 41, ¶ 8, 242 Wis. 2d 491, 625 N.W.2d 291. Because there are no disputed facts, the only issue is whether American Family is entitled to judgment as a matter of law. See Wis. Stat. § 802.08. In making this determination, the first question is whether the four American Family policies prohibit stacking policy limits in a manner recognized under Wisconsin law. The Sugdens argue that they do not, and therefore Albert is entitled to receive $25,000 under each of the four policies. American Family disagrees and points to the following language contained in the Uninsured Motorists section in each policy of the Sugdens:

LIMITS OF LIABILITY
The limits of liability of this coverage as shown in the declarations [25,000 per person, 50,000 per accident] apply, subject to the following:
1. The limit for "each person" [$25,000] is the maximum for all damages sustained by all persons as the result of bodily injury to one person in any one accident.
2. Subject to the limit for "each person," the limit for "each accident" is the maximum for bodily injury sustained by two or more persons in any one accident.
We will pay no more than these máximums no matter how many vehicles are described in the declarations, or insured persons, claims, claimants, or vehicles are involved.
The limits of liability of this coverage may not be added to the limits of liability of any similar coverage under any other policy an insured person or any member of an insured persons household may have.

(Emphasis added.)

¶ 7. The Sugdens do not argue that the anti-stacking provisions in the insurance policies are vague or ambiguous, or in any way fail to make clear that the policies prohibit stacking with regard to uninsured motorist coverage. Nor could they. The policies clearly state that the limits of coverage under one policy "may not be added" to the limits of coverage under another policy. However, the Sugdens contend that the language used in the American Family policies is not recognized in the Wisconsin Statutes, and therefore has no effect.

¶ 8. Before 1995, anti-stacking clauses were prohibited by Wis. Stat. § 631.43(1). Currently, however, Wis. Stat. §§ 631.43(3) and 632.32(5) permit insurance policies in Wisconsin to limit stacking in a number of specified ways. American Family contends that § 632.32(5)(f) applies in this case. It provides:

A policy may provide that regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid the limits for any coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident.

Section 632.32(5)(f).

¶ 9. We agree with American Family that the language in the policy falls within Wis. Stat. § 632.32(5)(f). We have repeatedly noted that an anti-stacking provision in an insurance policy need not be a word-for-word mirror of the statute. See Gragg v. American Fam. Mut. Ins. Co., 2001 WI App 272 ¶ 8, 248 Wis. 2d 735, 637 N.W.2d 477; Hanson v. Prudential Prop. & Cas. Ins. Co., 224 Wis. 2d 356, 370, 591 N.W.2d 619 (Ct. App. 1999). Most recently in Gragg, we considered whether another policy properly precluded stacking under Wis. Stat. § 632.32(5)(f), and concluded that it did. 2001 WI App 272 at ¶¶ 10-11. That provision provided: "The total limit of our liability under all policies issued to you by us shall not exceed the highest limit of liability under any one policy." Id. at ¶ 3. Like the policy in Gragg, the provisions in the Sugden policies do not match the language in Wis. Stat. § 632.32(5)(f), but nevertheless "may be enforced to prevent stacking." Id. at ¶ 11.

¶ 10. The Sugdens contend that the anti-stacking clauses in their policies cannot fall within Wis. Stat. § 632.32(5)(f) because to do so would make other, more specific provisions in the statute, such as § 632.32(5)(g), "superfluous" since all anti-stacking provisions could fall under paragraph (f). But this is an argument that paragraph (f) is written too broadly and should be directed at the legislature, not the judiciary. It does not explain how the American Family policies fail to meet the requirements of the statute. We therefore reject the Sugdens' argument that Wisconsin law prohibits the anti-stacking provisions contained in the American Family policies.

B. Waiver and Estoppel

¶ 11. Next, the Sugdens contend that, if the policies do prohibit stacking, American Family waived these provisions or is estopped from asserting them. They contend that American Family waived the anti-stacking provisions when it voluntarily stacked Raymond's and Marcella's policies in order to settle James's claim and then told the Sugdens that coverage still remained for Albert.

¶ 12. For the purpose of its summary judgment motion, American Family does not dispute the Sugdens' allegations regarding the representations of American Family's agent. It also does not dispute that these actions would generally constitute waiver. Rather it argues that anti-stacking provisions are coverage clauses, and therefore cannot be waived.

¶ 13. Both parties acknowledge that the rule in Wisconsin is that a "coverage clause of either an inclu-sionary or exclusionary nature going to the scope of the coverage assumed cannot be waived" while "a forfeiture clause furnishing a ground for forfeiture or defeasance of liability or a no-action clause can be waived." Shannon v. Shannon, 150 Wis. 2d 434, 454, 442 N.W.2d 25 (1989). They disagree, however, over what kind of clause an anti-stacking provision is. The Sugdens argue that because a car accident "is part of the basic risk covered under the policy," then the anti-stacking provision "is a 'forfeiture clause,' which attempts to limit or defeat coverage." American Family asserts that anti-stacking provisions are not forfeiture clauses because they "do not take away coverage which would otherwise exist; to the contrary, they help to define the scope of coverage in the first instance by confirming that the policy limit is, indeed, the maximum benefit available."

¶ 14. Anti-stacking provisions do not fit squarely into either the coverage or forfeiture clause category. And the supreme court has recognized that "[w]hat terms, conditions and provisions in a policy may be considered as forfeiture clauses and what language is considered essentially coverage is not always free from doubt. We think neither the type of insurance policy nor the form of language in the policy necessarily controls the question." Ahnapee & W. Ry. Co. v. Challoner, 34 Wis. 2d 134, 142, 148 N.W.2d 646 (1967). However, the court thus far has declined to adopt a more concrete rule.

¶ 15. Further, although the non-waiver and non-estoppel rule is applied almost universally across the nation, courts in other states have likewise struggled, largely unsuccessfully, to a generate a general principle that distinguishes forfeiture from coverage clauses. Some commentators have attacked the rule altogether, arguing that the difference between coverage and forfeiture clauses is often semantic, that there is no principled reason to distinguish the two, and that a rule insulating insurers from waiver and estoppel is inequitable because it allows insurers to make misrepresentations to an insured without consequence.

¶ 16. To date, Wisconsin courts have recognized as coverage clauses only provisions relating to whether a policy covers-a particular risk, person or location. See, e.g., Shannon, 150 Wis. 2d at 449-50 (provision excluding coverage for bodily injury to an "insured" is a coverage clause); International Chiropractors Ins. Co. v. Gonstead, 71 Wis. 2d 524, 528, 238 N.W.2d 725 (1976) (estoppel cannot be used to obtain coverage for someone not actually insured); Madgett v. Monroe County Mut. Tornado Ins. Co., 46 Wis. 2d 708, 176 N.W.2d 314 (1970) (estoppel cannot be used to obtain coverage for property when current owner did not purchase a new policy); Ahnapee, 34 Wis. 2d at 140 (provision excluding from coverage certain types of losses is a coverage clause); Budget Rent-A-Car Sys., Inc. v. Shelby Ins. Group, 197 Wis. 2d 663, 671-72, 541 N.W.2d 178 (Ct. App. 1995) (provision limiting coverage to audio-video store is a coverage clause); Utica Mut. Ins. Co. v. Klein & Son, Inc., 157 Wis. 2d 552, 562, 460 N.W.2d 763 (Ct. App. 1990) (provision that policy is issued in reliance on the truth of the applicant's representations is a coverage clause); Hoeft v. United States Fire Ins. Co., 153 Wis. 2d 135, 144, 450 N.W.2d 459, 463 (Ct. App. 1989) (in dicta) (expiration date of insurance policy goes to scope of coverage); Silverton Enterprises, Inc. v. General Cas. Co. of Wisconsin, 143 Wis. 2d 661, 670, 673, 422 N.W.2d 154 (Ct. App. 1988) (care, cústody and control exclusion is a coverage clause). But see Nugent v. Slaght, 2001 WI App 282, ¶ 28 (concluding insurer can be estopped from asserting cancellation as a defense).

¶ 17. Wisconsin courts have not considered whether provisions specifying the policy's limits are also insulated from waiver and estoppel, nor have they stated that an insured is precluded from asserting waiver or estoppel in only the above instances. Courts in other jurisdictions, however, have generally considered provisions pertaining to policy limits to be coverage clauses. See, e.g., Ledoux v. Old Republic Life Ins. Co., 233 So.2d 731, 735-36 (La. Ct. App. 1970) (limitation of liability to a stated amount was a statement of coverage rather than a right granted to the insurer to avoid liability); Shannon v. Great Am. Ins. Co., 276 N.W.2d 77, 78 (Minn. 1979) (insurer was not barred from asserting defense that claim exceeded limits in policy even though insurer's agent represented that claim would be settled for more than policy limits).

¶ 18. Further, the primary rationale for the non-waiver rule is that an insurer should not have to cover a loss for which the insured paid no premium. Shannon, 150 Wis. 2d at 452. See also Madgett, 46 Wis. 2d at 710 ("Estoppel can block, but it cannot create. It is a barricade that can stop a litigant from proceeding down a roadway that, except for estoppel, would be open to him. It is not a bulldozer that can create a roadway where none in fact exists or ever did.") Applying this rationale to the present case would suggest that the anti-stacking provisions are not subject to waiver or estoppel. The Sugdens paid for policies with a $50,000 occurrence limit. Allowing them to collect more than this amount would give the Sugdens more than they paid for and create coverage where none existed.

¶ 19. However, as we stated in Nugent, a case in which we concluded that an insurer can be estopped from asserting a cancellation defense, there are some instances where waiver or estoppel may apply even though doing so will create coverage that otherwise would not exist. 2001 WI App 282, at ¶ 24 ("[I]t is apparent that neither Shannon nor Ahnapee sets forth the general rule that an insurance company cannot be forced to provide coverage whenever it did not receive premium payment for the time period in question."). Nevertheless, Nugent failed to explain when waiver or estoppel could be used to create coverage other than under the facts of that case, and it is clear that Nugent is an exception to the general rule. Further, this case differs from Nugent in some important respects.

¶ 20. For instance, the insurer in Nugent had allowed its insured to believe during a period of three years of negotiations that she had a valid policy in effect at the time of her accident, and the insurer agreed that the insured had no reason to suspect that her policy had been cancelled. Id. at ¶ 7. Also, allowing the insurer in Nugent to assert a cancellation defense would have completely denied the insured relief, even though she had reasonably believed she had coverage. This suggests a rule similar to those adopted by some other jurisdictions, namely, that coverage may be expanded by waiver or estoppel "where the inequity of forcing the insurer to pay on a risk for which it never collected premiums is outweighed by the inequity suffered by the insured because of the insurance company's actions." Lee v. Evergreen Regency Co-op. & Mgt. Sys., Inc., 390 N.W.2d 183, 186 (Mich. Ct. App. 1986).

¶ 21. In the case before us, no inequity will result from precluding the Sugdens from asserting a waiver or estoppel claim. Although the Sugdens contend that they relied on the agent’s assurance that coverage still existed for Albert in accepting American Family's settlement, they do not .explain how accepting the settlement was detrimental to them. They received the maximum amount allowed under the four polices for one occurrence, or $50,000. Choosing not to accept American Family's settlement offer would not have increased this amount or entitled the Sugdens to a larger sum. Further, the Sugdens do not allege that they lost significant time or resources due to the agent's misrepresentation. We therefore conclude that American Family did not waive nor is it estopped from applying the anti-stacking provisions.

C. Remaining Coverage

¶ 22. In settling James's claim, American Family paid $25,000 under one of Raymond's policies and $25,000 under Marcella's policy. The Sugdens contend that, by doing this, American Family chose to stack coverage on its own, and therefore, "there should be available the balance of $25,000 for the uninsured motorist coverage under the $50,000 'occurrence' limits under any single one of the four Sugden policies." This argument appears to be only a slight variation of the previous one, namely, that American Family waived the anti-stacking provision by stacking two policies on its own initiative, and we reject it again here.

¶ 23. The Sugdens cite to no authority supporting this argument and they fail to explain why American Family's choice to satisfy the claim by using two policies rather than one should work to increase the policy limits for an accident. Either way, the policies provide for a maximum of $50,000 for any occurrence regardless of the number of individuals injured. The Sugdens have not alleged that American Family breached its duty of good faith by paying the policy limits to satisfy James's claim or cited any legal authority that would require American Family to pay out additional amounts to Albert above the $50,000 it has already paid. We therefore conclude that the Sugdens are not entitled to an amount greater than the policies' maximum.

By the Court. — Judgment and order affirmed.

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

       Stacking is the process by which policy holders are able to add the limits of multiple policies in order to obtain an overall higher maximum limit of coverage. See Estate of Dorschner v. State Farm Mut. Auto. Ins. Co., 2001 WI App 117, ¶ 8, 244 Wis. 2d 261, 628 N.W.2d 414; Allstate Ins. Co. v. Gifford, 178 Wis. 2d 341, 348 n.3, 504 N.W.2d 370, 373 (Ct. App. 1993).

       Wisconsin Stat. § 632.32(5)(g) provides:
      A policy may provide that the maximum amount of uninsured or underinsured motorist coverage available for bodily injury or death suffered by a person who was not using a motor vehicle at the time of an accident is the highest single limit of uninsured or underinsured motorist coverage, whichever is applicable, for any motor vehicle with respect to which the person is insured.

        See generally Annotation, Doctrine of Estoppel or Waiver as Available to Bring Within Coverage of Insurance Policy Risks Not Covered by Its Terms or Expressly Excluded Therefrom, 1 ALR 3rd 1139 (1965). Some courts have simply ignored the rule in cases where it would clearly apply. E.g., Stone v. Waters, 483 S.W.2d 639, 645 (Mo. Ct. App. 1972) (holding that insurer waived defense that particular automobile was not covered on the insurance policy when it had previously denied coverage on a different ground). As a result, some commentators have concluded that classification by courts is largely outcome oriented and that courts will consider a provision to be a forfeiture clause if it concludes that barring an insured from asserting waiver or estoppel would be inequitable. See Comment, When Will the Smoke Clear?: Application of Waiver and Estoppel in Missouri Insurance Law, 66 Mo. L. Rev. 225, 243 (2001).

        See, e.g., Note, Insurance Law-Extension of Coverage by Estoppel, 1970 Wis. Law Rev. 1234 (1970). The author of this note points out that estopping an insurer from asserting either coverage or forfeiture clauses forces the insurer to pay under circumstances not covered by the premium and the function of both types of clauses is the same:
      Both limit the risks assumed by the insurer so that the sums received in premiums are adequate to pay, in addition to expenses and a reasonable return on investment, all claims which the insurer is legally obligated to pay. Given the fact that both types of clauses can have a demonstrable effect upon premium rates, it is difficult to see why courts object to extending the coverage of a policy by estoppel and yet feel free to estop the assertion of a forfeiture provision.

        Id. at 1237.
      The note further argues that the rule against estoppel is flawed on equitable grounds:
      The insurance contract is the hallmark of a contract of adhesion. The contract is entirely prepared by the insurer and sold to buyers who rarely have the time or the ability to fully understand its complicated provisions. This inequality between the parties to the insurance contract, combined with the fact that insurance is considered a necessity by most people, creates a relationship of special trust and confidence between the insurer and the insured. It would seem eminently reasonable under these circumstances to require that the insurer be held to the utmost good faith and full disclosure of all material facts. This is especially true when the insurer holds out its agents as professionals upon whom policyholders are encouraged to rely for competent and complete advice. The insurer, not the insured, has the power to prevent misrepresentations of coverage by the proper selection, training, and supervision of its agents. Placing the loss on the insurer would provide incentive to use this power.

        Id. at 1240.

        See also Harr v. Allstate Ins. Co., 255 A.2d 208, 218 (N.J. 1969) (concluding that insurer may be estopped from denying expansion of coverage "where the estopping conduct arose before or at the inception of the contract"); Spinosa v. Hartford Fire Ins. Co., 456 N.Y.S.2d 140, 141 (N.Y App. Div. 1982) (holding that insurer may be estopped from denying coverage if it represented that coverage did in fact exist "for an unreasonable length of time"); Martini v. Lafayette Studios Corp., 676 N.Y.S.2d 808, 814 (NY Sup. Ct. 1998) (concluding that insurer would- be estopped from denying claim based on expiration of policy when insurer had initially told insured that claim was covered and prevented insured from filing a timely claim with correct insurer).