author: WEDEMEYER, PJ.

text:
    Union Pacific Railroad Company, Plaintiff-Appellant, v. Motive Equipment, Inc., Defendant-Third-Party Plaintiff-Respondent, Electro-Motive Division/General Motors Corporation and Diesel Division of General Motors of Canada, Defendants-Respondents, v. West Bend Mutual Insurance Company and Marlin Toy Products, Inc., Third-Party Defendants-Respondents.
    Court of Appeals

      No. 2004AP2630.

      Oral argument January 18, 2006.

      Decided March 14, 2006.

    2006 WI App 58
    (Also reported in 714 N.W.2d 232.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Brian D. Baird and Patrick D. McNally of Bor gelt, Powell, Peterson & Frauen, S.C., Milwaukee. There was oral argument by Joseph P Mascovich.

    On behalf of the defendants-respondents, the cause was submitted on the brief of Michael J. Gonring and Keith A. Bruett of Quarles & Brady, LLP, Milwaukee, and Timothy S. Coon of Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, Pennsylvania. There was oral argument by Thomas J. Sweeney, Jr.

    On behalf of the defendant-third-party plaintiff-respondent, the cause was submitted on the brief of Christopher P. Riordan and Maureen Hegarty Ranter of von Briesen & Roper, S.C., Milwaukee. There was oral argument by Christopher P. Riordan.

    On behalf of the third-party defendants-respondents, the cause was submitted on the brief of Terry J. Booth of Piper & Schmidt, Milwaukee. There was oral argument by Terry J. Booth.

    Before Wedemeyer, RJ., Curley and Kessler, JJ.
   WEDEMEYER, PJ.

¶ 1. Union Pacific Railroad Company appeals from orders entered dismissing its contribution/indemnification action against Motive Equipment, Inc. (MEI) and Electro-Motive Division/ General Motors Corporation and Diesel Division of General Motors of Canada (GM). Union Pacific contends the trial court erred in granting summary judgment in favor of GM and MEI on the basis that the economic loss doctrine applied and the action was preempted by federal law, i.e., the Federal Employers Liability Act, (FELA) 45 U.S.C. §§ 51-60 and the Locomotive Inspection Act, (LIA) 49 U.S.C. §§ 20701-703. Because we conclude that Union Pacific's claim is preempted by federal law, we affirm.

BACKGROUND

¶ 2. On January 1, 1999, Douglas Butolph, a Union Pacific locomotive engineer, was operating unit number 8172, a diesel locomotive manufactured by GM, on a westbound coal train. Butolph noticed a strange odor and smoke in the cab, which started to burn his throat. He attempted to open all the windows to clear the odor, but that only made the odor worse. The cause of the smoke and odor was a fire in the refrigerator in the locomotive cab.

¶ 3. Butolph called the dispatcher and received permission to take the next available siding. He stopped the train there and exited the vehicle. He was exposed to the odor for about fifteen minutes before he was able to get off the locomotive. As a result, Butolph suffered severe rhino sinusitis and vocal cord dysfunction. Butolph filed suit against Union Pacific in Colorado. He alleged that Union Pacific failed to provide a reasonably safe place to work, and thus was negligent under the FELA, and the LIA Following discovery and mediation, Union Pacific settled Butolph's claim for $350,000.

¶ 4. Union Pacific then filed this action against GM, from whom it bought the locomotive, and MEI, who manufactured the refrigerator, for contribution and indemnity. It alleged that it paid more than its fair share of the parties' joint liability. Union Pacific alleged that GM had improperly installed the refrigerator and was liable for negligence, strict products liability, breach of warranties and breach of the indemnification provisions of the sale contract for the locomotive. MEI was the manufacturer of the refrigerator that malfunctioned and started the fire. Union Pacific alleged that MEI was liable for negligence, strict products liability, and breach of warranties.

¶ 5. GM and MEI filed motions seeking summary judgment. GM asserted that the LIA preempted any tort claims against it and its warranty disclaimers eliminated any non-tort claims. GM also asserted there was no proof of causation. MEI asserted similar arguments and contended that the claim was barred by the economic loss doctrine.

¶ 6. The trial court granted GM's and MEI's motions for summary judgment, holding that Union Pacific's claims were preempted by federal law, that its damages were "purely economic" and that its theories of negligence, strict liability and breach of warranty were barred by the economic loss doctrine. Union Pacific now appeals.

DISCUSSION

¶ 7. This case arises from a grant of summary judgment. Our standard of review in such circumstances is well known. We review summary judgments independently, employing the same methodology as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). We do value any analysis that the trial court has placed in the record. We will affirm the trial court's decision granting summary judgment if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2003-04).

¶ 8. The dispositive issue in this case is whether Union Pacific's claim is preempted by federal law. We conclude that it is, and therefore affirm the trial court for the reasons that follow.

¶ 9. In 1926, the United States Supreme Court held that the LIA (sometimes referred to as the Boiler Inspection Act) "extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances." Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605, 611 (1926). Congress intended federal law to occupy the entire field of locomotive safety and equipment, "particularly as it relates to injuries suffered by railroad workers in the course of their employment." Law v. General Motors Corp., 114 F.3d 908, 910 (9th Cir. 1997). In Law, the Ninth Circuit articulated the reason preemption was necessary:

This broad preemptive sweep is necessary to maintain uniformity of railroad operating standards across state lines. Locomotives are designed to travel long distances, with most railroad routes wending through interstate commerce. The virtue of uniform national regulation "is self-evident: locomotive companies need only concern themselves with one set of equipment regulations and need not be prepared to remove or add equipment as they travel from state to state."

Id. (citations omitted). Although cases are repeatedly brought challenging the status of federal preemption in this area, the majority of courts across the nation hold firm to the Napier principle that federal law preempts all state claims, leaving no area within which states may act. See, e.g., Darby v. A-Best Prods. Co., 811 N.E.2d 1117 (Ohio 2004); In re W. Virginia Asbestos Litig., 592 S.E.2d 818 (W Va. 2003); General Motors Corp. v. Kilgore, 853 So. 2d 171 (Ala. 2002); Forrester v. American Dieselelectric, Inc., 255 F.3d 1205 (9th Cir. 2001); Furlough v. Union Pacific R.R. Co., 766 So. 2d 751 (La. App. 2000); Seaman v. A.P. Green Indus., Inc., 707 N.Y.S.2d 299 (N.Y. Sup. Ct. 2000); Scheiding v. General Motors Corp., 993 P.2d 996 (Cal. 2000); Norfolk S. Ry. Co. v. Denson, 774 So. 2d 549 (Ala. 2000); Oglesby v. Delaware & Hudson Ry. Co., 180 F.3d 458 (2d Cir. 1999); Carter v. Consolidated Rail Corp., 709 N.E.2d 1235 (Ohio App. 1998); Springston v. Consolidated Rail Corp., 130 F.3d 241 (6th Cir. 1997); Key v. Norfolk S. Ry. Co., 491 S.E.2d 511 (Ga. App. 1997); In re Train Collision at Gary, Indiana, 670 N.E.2d 902 (Ind. App. 1996); Southern Pac. Transp. Co. v. Public Util. Comm'n, 9 F.3d 807 (9th Cir. 1993); Burlington N. R.R. v. City of Connell, 811 F. Supp. 1459 (E.D. Wash. 1993); Burlington N. R.R. Co. v. State of Montana, 805 F. Supp. 1522 (D. Mont. 1992); Smith v. Norfolk & W. Ry. Co., 776 F. Supp. 1335 (N.D. Ind. 1991); Missouri Pac. R.R. v. Railroad Comm'n of Texas, 850 F.2d 264 (5th Cir. 1988); King v. Southern Pac. Transp. Co., 855 F.2d 1485 (10th Cir. 1988); Green v. River Terminal Ry. Co., 585 F. Supp. 1019 (N.D. Ohio 1984), aff'd, 763 F.2d 805 (6th Cir. 1985); Marshall v. Burlington N., Inc., 720 F.2d 1149 (9th Cir. 1983); Consolidated Rail Corp. v. Pennsylvania Pub. Util. Comm'n, 536 F. Supp. 653 (E.D. Pa.), aff'd mem., 696 F.2d 981 (3d Cir. 1982), aff'd, 461 U.S. 912 (1983); New York, C. & ST. L.R.R. Co. v. Van Dorp, 173 N.E. 445 (Ohio App. 1930); Pennsylvania R.R. Co. v. Pelsor, 168 N.E. 249 (Ind. App. 1929).

¶ 10. Union Pacific argues that the holdings in these cases do not apply to the facts and circumstances of this case. It contends that because the instant case involves allegations that third parties' actions contributed to Butolph's injuries, Engvall v. Soo Line Railroad Co., 632 N.W.2d 560 (Minn. 2001) applies, and as a result, GM and MEI should share in the financial responsibility for the damages Butolph sustained. We cannot agree.

¶ 11. Union Pacific's contribution claims are premised on Butolph's underlying claim. Thus, Union Pacific can recover from GM and MEI, only if Butolph could have recovered from GM and MEI himself. See Kafka v. Pope, 194 Wis. 2d 234, 242-43, 533 N.W.2d 491 (1995). If Butolph's claim is preempted as to GM and MEI, then Union Pacific's claim must be preempted as well.

¶ 12. Federal law preempts any state action that would affect "the design, the construction, and the material" of locomotives. Napier, 272 U.S. at 611. Butolph's claim involved the negligent design of a refrigerator installed on the locomotive. There is simply no way to conclude that Butolph's claim is something different from that which is federally preempted. If Butolph attempted to file a state claim against GM or MEI, we have no doubt that his attempt would have failed. His remedy was limited to filing a claim against Union Pacific alleging violations of federal law. As the court in Law aptly explained:

Imposing tort liability on railroad equipment manufacturers would [affect the design, the construction and the material of locomotives] by forcing them to conform to design and construction standards imposed by the states. This would transfer the regulatory locus from the Secretary of Transportation to the state courts — a result the [federal law] was clearly intended to foreclose.

114 F.3d at 911-12 (footnote omitted).

¶ 13. Thus, we are not persuaded by Union Pacific's attempt to distinguish the preemptability of the instant case from those referenced above. Further, we are not persuaded that the rationale expressed in the Engvall case should be adopted. In Engvall, an employee of Soo Line Railroad sued the railroad for injuries sustained during his course of employment. 632 N.W.2d at 563. The railroad then filed a third-party complaint against the manufacturer of the locomotive alleging that a handbrake was poorly designed and that the manufacturer was liable under state common law theories and therefore would be liable to the railroad under contribution and/or indemnity law. Id. at 563-66. The manufacturer filed a motion seeking summary judgment on the theory that Soo Line's claims against it were preempted by federal law. Id. The Minnesota Supreme Court denied the motion, concluding that Soo Line's contribution claim was not preempted, distinguishing Law and- instead relying on several other cases, which addressed third-party liability. Id. at 571. The court held that the field preempted by the LIA does not include state common law actions based on a violation of the LIA. Id. The court held that a negligence per se claim based on a violation of LIA would not have any direct or substantial effect on the field of locomotive design, construction and material, and therefore did not fall within the preempted field. Id. at 570. The court further reasoned that because no state standard was imposed, there was no danger of undermining the goal of nationwide uniformity of railroad operating standards. Id. at 570-71. The reasoning of the Minnesota Supreme Court reflects adoption of a public policy unique, it appears, to Minnesota, among the many courts that have considered the preemption issue. We are not persuaded that the reasoning applied in Engvall should apply here.

¶ 14. Accepting the reasoning in Engvall would undermine congressional intent as Congress specifically did not provide for a private right cause of action for a violation of LIA and specifically drafted FELA as only applying to carriers and not manufacturers. See Napier, 272 U.S. at 611-13. Congress drafted FELA to operate as a general negligence statute, which allows railroad employees who are injured during the course of their employment to recover from their employers, if their employers were negligent. See Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 140 (2003). The employer's duty is nondelegable under FELA. See Ellison v. Shell Oil Co., 882 F.2d 349, 353 (9th Cir. 1989). The LIA " 'imposes upon the carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate ... without unnecessary peril to life or limb.'" Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 485 (1943) (citations omitted). The United States Supreme Court has characterized LIA as an amendment to FELA "dispensing], for the purposes of employees' suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations ... effective to show negligence as a matter of law." Urie v. Thompson, 337 U.S. 163, 189 (1949). LIA, therefore, serves the purpose of facilitating an employee's ability to recover under FELA. Id. LIA applies to manufacturers, but FELA does not. See 49 U.S.C. § 21302 (1994); 49 CFR 229.7(b) (2000). LIA, however, does not create any private right of action for injured employees. Id.; Law, 114 F.3d at 912.

¶ 15. Further, the cases relied on by Engvall do not support its holdings. Rather, the cases referred to either: (1) involve the Safety Appliance Act, which does not carry the same broad preemptive effect as the LIA, see Crane v. Cedar Rapids & I.C. Ry. Co., 395 U.S. 164 (1969); or (2) constitute a situation where the third-party was the owner of the object or property that caused the accident; see, e.g., Ellison, 882 F.2d 349.

¶ 16. Based on the foregoing, we conclude that we cannot follow the Engvall case. To do so, based on the facts presented in the instant case, would result in a clear violation of congressional intent to occupy the entire field of regulating locomotive equipment. Napier, 272 U.S. at 607. Butolph's claims here fall squarely into federal law governing design, construction and material of every part of the locomotive and tender and all appurtenances. See id. at 611.

¶ 17. Union Pacific does not dispute that the refrigerator and its design ventilation louvers were appurtenances of the locomotive. It argues, nevertheless, that GM and MEI had a duty to make it safe to operate without unnecessary danger of personal injury. It continues that it would he unfair for it to shoulder the entire blame for the damages paid to Butolph. Although this court can sympathize with Union Pacific's position, we are hound to apply preemption rules. Congress has established the field of locomotive equipment and safety as one which requires broad preemptive effect. Thus, any claim, including one alleging contribution/indemnification, will be preempted by federal law if the subject matter of the claim falls within the preempted field. The subject matter of Union Pacific's claim involves an alleged design defect of a refrigerator and its ventilation louvers installed on one of its locomotives. This matter clearly falls within the preempted field.

¶ 18. Union Pacific also argues that its claim should not be preempted because it will not affect nationwide uniformity of locomotive equipment or safety. It contends it is simply trying to assert liability against GM and MEI for the same LIA violation for which it was held responsible. This argument, however, is not material to our analysis. Federal law applies to preempt any common law claims. Accordingly, the only way Union Pacific can assert claims against GM and MEI is if the federal statutory scheme permits such action.

¶ 19. Based on the foregoing analysis, we conclude that Union Pacific's claims against GM and MEI are preempted by federal law. Accordingly, the trial court did not err in granting summary judgment in this case. Because we have decided the case on the doctrine of preemption, it is not necessary for us to address whether the economic loss doctrine applies, or any other peripheral issues raised by the parties. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).

By the Court. — Orders affirmed.

       MEI brought in Marlin Toy Products, Inc. and its insurer as third-party defendants. Marlin was dismissed on the same grounds as the other parties, although it asserted a different basis in its summary judgment motion. Because we are affirming the trial court on preemption grounds, it is not necessary for us to address Marlin's argument at the trial court level or on appeal.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Travelers Indemnity Company of Illinois, Plaintiff-Respondent, v. Staff Right, Inc., Defendant-Appellant.
    Court of Appeals

      No. 2004AP2802.

      Oral argument December 7, 2005.

      Submitted on Supplemental briefs February 20, 2006.

      Decided March 14, 2006.

    2006 WI App 59
    (Also reported in 714 N.W.2d 219.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs and supplemental briefs of Attorney Arthur E. Beck and Attorney Steven W. Jelenchick of Beck, Chaet & Bamberger, S.C., of Milwaukee. There was oral argument by Arthur E. Beck.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief and supplemental brief of Jonathan H. Dudley of Howard, Solochek & Weber, 5.C., of Milwaukee. There was oral argument by Jonathan H. Dudley.

    Before Fine, Curley and Kessler, JJ.
   FINE, J.

¶ 1. Staff Right, Inc., appeals from a summary judgment awarding Travelers Indemnity Company of Illinois more than $100,000 on its claim that Staff Right owed it for the unpaid part of a worker's-compensation premium. We reverse and remand for further proceedings consistent with this decision.

I.

¶ 2. Staff Right supplies temporary workers to businesses in both Wisconsin and other states. This case concerns temporary worker's-compensation coverage for workers it supplied to a Wisconsin company for that company's project in Illinois. Staff Right's worker's-compensation coverage in Illinois was under an assigned-risk pool stemming from its earlier placement in Illinois of temporary workers, and Travelers was its assigned worker's-compensation carrier. See III. Admin. Code tit. 50, §§ 2904.60, 2904.70 (assigned-risk worker's-compensation coverage).

¶ 3. On March 22, 2000, Travelers issued a worker's-compensation policy to Staff Right for the Illinois project that underlies this appeal. The "policy period" was from March 1, 2000, to March 1, 2001. The policy states on its face: "The premium for this policy will be determined by our Manuals of Rules, Classifications, Rates and Rating Plans. All required information is subject to verification and change by audit to be made annually." (Small capitals in original.)

¶ 4. The dispute here focuses on an "experience rating modifier" of 2.83 that Travelers applied in setting Staff Right's premium. Staff Right contended that the modifier was too high, and that, as a result, Travelers overcharged it.

¶ 5. In support of its motion for summary judgment, Travelers submitted an affidavit of a Travelers assistant manager, Colleen Winegardner. Winegardner averred that, as material to this decision:

• 'Worker's Compensation Premiums are calculated by multiplying the company payroll by the worker's [sic] classifications and then again by the modification factor."
• "To determine Staff Right, Inc.'s premium, Travelers applied the experience rating modifier assigned to it by the National Council on Compensation Insurance of 2.83."
• The National Council on Compensation Insurance "is a non-profit corporation that has been compiling statistics regarding Worker's Compensation Insurance for providers and administrative agencies alike since 1922."
• "Under applicable Illinois law, experience rating are [sic] determined by the National Council on Compensation Insurance subject to the review of the Illinois Department of Insurance." (Parenthetical with acronym omitted.)
• "Among the duties delegated to [The National Council on Compensation Insurance] is the power to determine experience rating modifiers."
• "[T]he particular insurance provider in the State of Illinois is left with no choice as to what experience rating modifier to apply to the insured's policy."
• "In the present situation, Travelers was assigned, by the [National Council on Compensation Insurance] and therefore by the Illinois Department of Insurance, an experience rating modifier of 2.83 for the year 2000, and, in turn, applied this experience rating modifier to Staff Right's Worker's Compensation Insurance premium [on the policy at issue here]."

¶ 6. Staff Right submitted in opposition to Travelers's motion for summary judgment an affidavit by Gerald Ordoyne, described in his affidavit as "a Manager in the Experience Rating Department of the National Council on Compensation Insurance," that averred that he had reviewed the Council's records and "determined that [it] did not generate [the] Experience Modification Factor [the disputed 2.83 used by Travelers] because Staff Right lacked sufficient interstate employment experience to properly generate such an interstate Modification Factor." He further averred that the National Council on Compensation Insurance "did not generate an Experience Rating Modifier" for Staff Right "until a rating effective date of December 31, 2002." Ordoyne's affidavit and an affidavit executed by a Vice President of the Wisconsin Worker's Compensation Rating Bureau (described by the affidavit as "a quasi-governmental agency" involved in the administration of Wisconsin's worker's compensation system), together indicate, in essence, that the 2.83 experience-rating modifier Travelers used was applicable only to Staff Right's Wisconsin operations. Ordoyne averred that the Council "notified Travelers of the 2.83 Wisconsin modification factor." Staff Right contends that Travelers improperly used the Wisconsin multiplier in setting the disputed Illinois premium.

¶ 7. The trial court ruled in its oral decision that Staff Right had not carried its summary-judgment burden because it had not demonstrated either how the 2.83 experience-rating modifier Travelers used in setting Staff Right's premium was too high, or what the correct modifier should have been. Further, the trial court accepted Travelers's contention that Travelers, as phrased by the trial court in its oral decision, "had no discretion to set the experience rating modifier but must apply the one set by" the National Council on Compensation Insurance.

II.

¶ 8. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). In assessing whether summary judgment is appropriate, we first determine whether the complaint states a claim, and, if so, whether there are any genuine issues of material fact for trial. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580, 582-583 (Ct. App. 1983). Summary judgment is not appropriate if the complaint states a claim and there are genuine issues for trial. Wis. Stat. Rule 802.08(2). In this connection, we are not bound by either the parties' framing of the issues, see Saenz v. Murphy, 162 Wis. 2d 54, 57 n.2, 469 N.W.2d 611, 612 n.2 (1991), overruled on other grounds by State ex rel. Anderson-El v. Cooke, 2000 WI 40, 234 Wis. 2d 626, 610 N.W.2d 821, or a party's alleged concession on a point of law, see Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 178-180, 456 N.W.2d 788, 794-795 (1990).

¶ 9. Under Illinois law, companies that are unable to get worker's-compensation coverage in the open market are assigned a carrier. III. Admin. Code tit. 50, §§ 2904.60, 2904.70. If immediate binding of coverage is needed, the Illinois Council on Compensation Insurance gives "a quotation for the estimated annual premium" based on information given to it by the employer's agent or broker. Sec. 2904.70(b). The employer's agent or broker must then pay upfront "at least 25% of the estimated annual premium or if installment payments are requested, the applicable deposit required by Section 2904.100 of this Part." Sec. 2904.70(b). If immediate binding of coverage is not needed, the employer applies to the Illinois Council on Compensation Insurance for an assigned-risk carrier. Sec. 2904.60(b). The Illinois Council on Compensation Insurance then reviews the employer's application, and "[i]f the application is complete the [Illinois Council on Compensation Insurance] will designate an insurance carrier which shall calculate the estimated annual premium ... required." Ibid, (emphasis added). Under § 2904.60, as in the immediate-binding-of-coverage situation covered by § 2904.70, the employer pays "at least 25% of the estimated annual premium" unless "installment payments are requested." Sec. 2904.60(c) (referencing III. Admin. Code tit. 50, § 2904.100). All assigned carriers must give to the Illinois Council on Compensation Insurance "a copy of each notice of premium prepared pursuant to Sections 2904.60 or 2904.70 of" III. Admin. Code tit. 50, pt. 2904 "[w]ithin ten days of assignment of any risk." III. Admin. Code tit. 50, § 2904.80.

¶ 10. As we have seen, III. Admin. Code tit. 50, § 2904.60(b) specifically recognizes that the assigned worker's-compensation carrier "shall calculate the estimated annual premium . . . required." But the calculation is not done in a vacuum. Rather, worker's-compensation carriers accepting assigned-risk designations "shall rate all policies issued under [III. Admin. Code tit. 50, pt. 2904] in accord with the National Council on Compensation Insurance Manuals of Rules and Rates on file with the Department of Insurance." III. Admin. Code tit. 50, § 2904.190. Further, an initial premium-calculation is not set in stone: "Final earned premium for any policy issued under the requirements of [tit. 50, pt. 2904] shall be determined on actual, instead of estimated, payroll or other premium basis." III. Admin. Code tit. 50, § 2904.120.

¶ 11. Although the Illinois Director of Insurance is given broad oversight authority in connection with worker's-compensation carriers doing business in Illinois and their rate-setting methodologies, see generally 215 III. Comp. Stat. 5/454-471, we have found nothing in either the Illinois statutes or regulations that supports Travelers's contention and the trial court's conclusion that Travelers had no discretion in the setting of an experience-rating modifier of 2.83, or that, once set, the premium cannot be adjusted. Illinois Admin. Code tit. 50, § 2904.190, upon which Travelers relies to support its contention that it had no choice but to apply the 2.83 experience-rating modifier to Staff Right, dictates a calculation method not a result. Indeed, 215 III. Comp. Stat. 5/462b recognizes that the carrier sets the premiums, subject to review:

Insurance companies shall apply correct classifications, payrolls and other factors of a rating system to compute premiums. If the application of incorrect classifications, payrolls or any other factors of a rating system results in the payment by an insured of premiums in excess of the premiums that would have been paid utilizing the correct applications of classifications, payrolls or other factors of a rating system, the insurer shall refund to the insured the excessive premium paid for the period during which the incorrect application of classifications, payrolls or other factors of a rating system were applied. This Section is intended to codify existing law and practice.

This, of course, is specific statutory authority for III. Admin. Code tit. 50, § 2904.120 ("Final earned premium for any policy issued under the requirements of [III. Admin. Code tit. 50, pt. 2904] shall be determined on actual, instead of estimated, payroll or other premium basis."), which we quoted earlier.

¶ 12. As we have seen, the Travelers policy underlying this dispute apparently recognized its independent responsibility to set the applicable premium, subject to whatever adjustments might be appropriate: "The premium for this policy will be determined by our Manuals of Rules, Classifications, Rates and Rating Plans. All required information is subject to verification and change by audit to be made annually." (Small capitals in original.) An employer seeking a refund under 215 III. Comp. Stat. 5/462b, need only allege:

(1) the existence of an insurance contract; (2) allegations of incorrect application of classification, payroll, or other factors of a ratings system to compute premiums and/or the application of an incorrect classification, payroll, or other factors of an incorrect ratings system to compute premiums[;] and (3) such conduct resulted in overpayment by the insured.

Casualty Ins. Co. v. Hill Mech. Group, 753 N.E.2d 370, 375 (Ill. App. Ct. 2001). Staff Right's objection to Travelers's assessment of premiums passes this muster. Additionally, since on this Record the trial court's grant of summary judgment was based on its erroneous view that Travelers was required by Illinois law to apply the experience-rating modifier of 2.83, we cannot conclude, on our de novo review, that Travelers was "entitled to a judgment as a matter of law." Wis. Stat. Rule 802.08(2). Accordingly, we reverse and remand for further proceedings, with leave for either or both parties to seek summary judgment if, in the view of either or both, there are no disputed facts as to whether Staff Right is entitled to a refund under 5/462b.

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

      "Experience rating is a system of credits and debits intended to put upon an employer that additional responsibility which his failure of care and caution occasions, or his experience of his plant occasions, and give him a debit for his failure, and to give that other employer who does look after it a credit. Experience rating is, after all, the finest type of encouragement to accident and disease prevention. That is its purpose and the balancing up of liability."

        Wisconsin Comp. Rating & Inspection Bureau v. Mortensen, 227 Wis. 335, 344, 277 N.W. 679, 683 (1938) (adopting definition testified to by a former chairman of the Wisconsin Industrial Commission).

       The National Council on Compensation Insurance has been described, inter alia, as "an association comprised of workers' compensation insurers which acts as a clearinghouse for information for its members." 1984 Ill. Op. Att'y Gen. 42, 1984 WL 60042, at *2 (Sept. 13, 1984).

       The word "Bureau" in the applicable regulations "means the Illinois Council on Compensation Insurance." III. Admin. Code tit. 50, § 2904.40. Accordingly, we use the more descriptive phrase, Illinois Council on Compensation Insurance, whenever we refer to what the regulations call the "Bureau."


author: LOUIS B. BUTLER, JR., J.

text:
    Affordable Erecting, Inc., Plaintiff-Appellant-Petitioner, v. Neosho Trompler, Inc., Defendant-Respondent.
    Supreme Court

      No. 2004AP2746.

      Oral argument February 21, 2006.

      Decided June 9, 2006.

    2006 WI 67
    (Also reported in 715 N.W.2d 620.)

      For the plaintiff-appellant-petitioner, there were briefs by Robert N. Meyeroff and Robert Meyeroff Law Office, Milwaukee, and oral argument by Robert N Meyeroff.

    For the defendant-respondent, there was a brief by Steven R Bogart, Bridget M. Hubing and Reinhart Boerner Van Deuren, S.C., Milwaukee, and oral argument by Steven R Bogart.

       The predecessor statute, Wis. Stat. § 269.46(2)(1973-74), provided:
      No agreement, stipulation or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney.

   LOUIS B. BUTLER, JR., J.

¶ 1. Affordable Erecting, Inc. ("Affordable") seeks review of a decision by the court of appeals affirming a decision of the Washington County Circuit Court, Honorable Annette K. Ziegler, granting dismissal to Neosho Trompler, Inc. ("Neosho"). The circuit court determined that the mediation agreement met the statutory requirements for a valid settlement under Wis. Stat. § 807.05 (2003-04) because Affordable's attorney signed the document. The circuit court also determined that Affordable was equitably estopped from pursuing its March 2, 2004, claim against Neosho.

¶ 2. The court of appeals determined that the circuit court erred when it decided that there was a settlement agreement under Wis. Stat. § 807.05, but affirmed the circuit court's dismissal by applying the doctrine of equitable estoppel. Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2005 WI App 189, 286 Wis. 2d 403, 703 N.W.2d 737.

¶ 3. We agree with the court of appeals. Although the settlement agreement does not meet the statutory requirements established in Wis. Stat. § 807.05, we conclude that Affordable is nonetheless estopped from pursuing its claim because Neosho has proven that actions and non-actions by Affordable induced reasonable reliance by Neosho to its detriment. We further determine that the record contains no genuine issues of material fact, and no reasonable alternative inferences that can be drawn from undisputed material facts, sufficient to warrant a trial. We therefore affirm the court of appeals.

I

¶ 4. The material facts are not disputed. On March 22, 2001, Affordable and Neosho contracted to have Affordable relocate Neosho's equipment from Hus-tisford, Wisconsin, to Hartland, Wisconsin. Affordable moved the equipment and demanded payment. According to Neosho, some of Neosho's equipment was damaged during the move due to Affordable's negligence. Neosho therefore refused to pay the $17,877.50 billed by Affordable.

¶ 5. On October 11, 2001, Affordable filed a complaint in Washington County Circuit Court claiming breach of contract by Neosho and requesting approximately $17,900 in damages. Neosho counterclaimed, alleging breach of contract by Affordable and common carrier liability, contending that its equipment was damaged during the move and that it was not obligated to pay Affordable under the terms of their contract.

¶ 6. Both companies' insurance companies became parties to the suit. Acuity, a Mutual Insurance Company and Affordable's insurer ("Acuity"), joined the suit to defend against Neosho's counterclaims. General Casualty Company of Wisconsin ("General Casualty") was permitted to intervene to pursue claims against Affordable as to its liability for damage to Neosho's equipment, which would otherwise be paid under Neosho's General Casualty policy.

¶ 7. On April 4, 2002, Honorable David C. Resh-eske ordered the four parties to enter into mediation. The parties participated in the court-ordered mediation on May 21, 2003. Affordable's attorney, Phillip J. Eck-ert, attended the mediation unaccompanied by any other representative from Affordable. The parties appeared to have reached a settlement agreement, with Acuity agreeing to pay $12,500 total, inclusive of all costs, disbursements, attorney fees, and damages: $5,000 to Neosho, $3,500 to Affordable, and $4,000 to General Casualty. The agreement also provided that parties would not bring future claims or lawsuits against one another arising out of the facts and issues from the lawsuit, would release each other from any further liability, and that the settlement would be binding.

¶ 8. Attorneys for Acuity, General Casualty, and Neosho, as well as the owner of Neosho, signed the agreement on May 21, 2003. Affordable's attorney also signed the agreement, but noted that the "Settlement [was] contingent on approval from Tracy Haferkorn [Affordable's owner] by May 22, 2003 [at] 12 p.m." Nothing in the record indicates that Tracy Haferkorn authorized the settlement by noon the following day, as required by the contingency.

¶ 9. According to the circuit court's decision in this case, on May 23, 2003, the circuit court received a letter and a telephone call from the attorney for General Casualty, indicating the case was settled and that a stipulation would be forthcoming. Affordable v. Neosho, No. 04CV614, (Washington County Cir. Ct. Sept. 20, 2004).

¶ 10. On May 29, 2003, Acuity issued checks in the amounts agreed to in the May 21 settlement. Acuity mailed the checks, along with releases, stipulations, and orders for dismissal according to the terms of the settlement agreement, on June 4, 2003. Acuity signed the documents on May 28, 2003, and Neosho and General Casualty signed the documents on June 9, 2003, and cashed the checks issued by Acuity. Although Affordable did not sign the documents, Attorney Eckert held Affordable's settlement check in his trust account and did not return the money to Acuity for more than seven months.

¶ 11. An affidavit by Eckert, submitted to the circuit court, indicates that at some point approximately three weeks after the May 22, 2003, 12:00 p.m. deadline, Janice Haferkorn informed Eckert that Affordable approved the settlement. According to the affidavit and Affordable's representations at oral argument, Affordable's acceptance of the settlement terms was communicated to Acuity. Moreover, Eckert called the court and indicated they had signed a stipulation on June 25, 2003. Affordable v. Neosho, No. 04CV614, (Washington County Cir. Ct. Sept. 20, 2004). Several weeks later, Janice Haferkorn retracted this statement, informing Eckert that Affordable would not approve the settlement.

¶ 12. Because the circuit court had received no written settlement agreement from the parties by July 24, 2003, the court notified the parties it would dismiss the case in 20 days unless good cause was shown. Five days later, General Casualty sent a letter to the other parties requesting completion of the formalized settlement.

¶ 13. On August 13, 2003, nearly two years after Affordable filed its original claim, Judge Resheske executed a Dismissal Order for the original case filed in Washington County, finding the matter had not been diligently prosecuted. The court dismissed the case without prejudice.

¶ 14. Following the circuit court's order, on August 18, 2003, Neosho sent a letter to Affordable requesting completion of the formalized settlement.

¶ 15. On December 10, 2003, Affordable hired new counsel and the circuit court signed an order for the substitution of Affordable's attorney.

¶ 16. Approximately eight months after Affordable received the check issued by Acuity pursuant to the terms of the May 21, 2003, settlement agreement, Affordable returned the money to Acuity.

¶ 17. On March 2, 2004, Affordable filed a complaint in Waukesha County virtually identical to its October 11, 2001, complaint, alleging the same facts and making the same claim against Neosho as in its original complaint. Neosho filed a counterclaim, asserting the same arguments as before, as well as a breach of the settlement claim. Neosho also filed a motion to enforce the settlement and dismiss Affordable's claim with prejudice. Affordable responded that it had never approved the settlement, and moved to dismiss the counterclaims on the ground that Neosho released any claims pursuant to the settlement and received payment. The Washington County Circuit Court, Honorable Annette K. Ziegler, granted Neosho's motion and dismissed Affordable's complaint with prejudice, concluding that Affordable and Neosho had entered into a valid and enforceable settlement agreement under Wis. Stat. § 807.05 and also concluding that Affordable was equitably estopped from reasserting its claim against Neosho.

¶ 18. Affordable appealed. On July 6, 2005, the court of appeals reviewed the case as a summary judgment order and, in a published opinion, overruled the circuit court's determination that the mediation agreement complied with Wis. Stat. § 807.05, but affirmed the dismissal, concluding that Affordable was equitably estopped from pursuing the claim.

1 — I 1 — I

¶ 19. Although the circuit court granted Neosho's motion to dismiss, because the court relied on information outside the pleadings, like the court of appeals, we review the circuit court's decision as a grant of summary judgment in favor of Neosho. Wis. Stat. § 802.06(3). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine-issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). We review summary judgment de novo, viewing the facts in the light most favorable to the non-moving party, Affordable, and making all reasonable inferences in Affordable's favor. See Johnson v. Rogers Memorial Hosp., Inc., 2005 WI 114, ¶ 30, 283 Wis. 2d 384, 700 N.W.2d 27.

¶ 20. We are asked to determine whether the circuit court properly concluded that the statutory requirements of Wis. Stat. § 807.05 were met. In this case, the parties agree that the facts are undisputed. Whether undisputed facts fulfill a statutory requirement is a question of law, reviewed de novo. Ide v. LIRC, 224 Wis. 2d 159, 166, 589 N.W.2d 363 (1999).

¶ 21. We are also asked to determine whether equitable estoppel bars Affordable's claim in this case. In general, when the facts are undisputed, or when the facts are disputed and the circuit court's factual findings are not clearly erroneous, this court reviews the application of equitable estoppel de novo. Randy A.J. v. Norma I.J., 2004 WI 41, ¶ 12, 270 Wis. 2d 384, 677 N.W.2d 630 (citing Milas v. Labor Ass'n of Wisconsin, Inc., 214 Wis. 2d 1, 8, 571 N.W.2d 656 (1997)). Because we are reviewing a grant of summary judgment, however, if the facts are disputed, then summary judgment is improper. Village of Hobart v. Brown County, 2005 WI 78, ¶¶ 18-21, 281 Wis. 2d 628, 698 N.W.2d 83. On the other hand, if undisputed facts in the record lead to the conclusion that the elements of equitable estoppel are present, and no alternate view of the facts supports a contrary conclusion, the decision to apply the doctrine of equitable estoppel is within the circuit court's discretion. Salveson v. Douglas County, 2001 WI 100, ¶ 38, 245 Wis. 2d 497, 630 N.W.2d 182; State v. Petty, 201 Wis. 2d 337, 342, 346-47, 548 N.W.2d 817 (1996).

1 — 1 H-1 1 — l

¶ 22. We begin our analysis of whether the settlement agreement met the requirements of Wis. Stat. § 807.05 by examining the text of that statute. Our analysis begins with the statutory language because we assume the legislature means what it writes. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. The relevant statute states, in full:

No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court or during a proceeding conducted under s. 807.13 or 967.08 and entered in the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney.

Wis. Stat. § 807.05 (emphasis added).

¶ 23. This statute creates additional requirements that must be met in order for an otherwise valid oral agreement to be enforceable "when the agreement is reached in the course of a claim that is in the process of adjudication." Kocinski v. Home Ins. Co., 154 Wis. 2d 56, 67-68, 452 N.W.2d 360 (1990). "An oral contract reached by stipulation in the course of court proceedings is unenforceable unless formalized in the way required by sec. 807.05." Id. The purpose of this rule is "to prevent disputes and uncertainties as to what was agreed upon." Adelmeyer v. Wis. Elec. Power Co., 135 Wis. 2d 367, 372, 400 N.W.2d 473 (Ct. App. 1986) (citations omitted). In this case, because the settlement was not made in court and on the record, Wis. Stat. § 807.05 unambiguously requires the settlement to be memorialized in writing and subscribed by each party or its attorney.

¶ 24. Although the May 21, 2003, settlement agreement was clearly in writing and counsel for Acuity, General Casualty, and Neosho, as well as the owner of Neosho, signed the agreement, when Affordable's attorney signed the agreement, he noted that Affordable's acceptance was contingent on Affordable's owner consenting to the agreement by noon the following day. It is undisputed that this contingency was not met. Therefore, we must determine whether the requirements of Wis. Stat. § 807.05 are satisfied when a party's attorney has signed the agreement but added a contingency that was not fulfilled.

¶ 25. Affordable contends that because the contingency was not met, the circuit court erred when it found the settlement agreement in compliance with Wis. Stat. § 807.05. Neosho asserts that Affordable's attorney assured the other parties involved in the litigation that Affordable would approve the settlement and failed to inform any party that Affordable rejected the settlement until months after all other parties performed all of their obligations. Neosho further asserts that Affordable failed to respond to Acuity's June 4, 2003, letter to Neosho, General Casualty, and Affordable, which announced that the case had settled and contained a check for the amount agreed upon at the May 21, 2003, mediation.

¶ 26. The court of appeals agreed with Affordable, concluding that even though Affordable's attorney assured the other parties that Affordable would approve the settlement agreement, "verbal assurances of Affordable's attorney do not satisfy the statutory requirement that an agreement be 'subscribed' by a party or the party's counsel." Affordable, 286 Wis. 2d 403, ¶ 13. The court of appeals concluded that the statutory requirements of Wis. Stat. § 807.05 are an exception to the general rule that oral agreements are binding. Id., ¶ 14. We agree with the court of appeals.

¶ 27. This court's reasoning and conclusions in Kocinski, 154 Wis. 2d 56, are instructive. In that case, Kocinski's attorney and the attorney for the City of Milwaukee orally agreed to settlement terms during a telephone conversation. Id. at 60-61. Kocinski's attorney memorialized their agreement in a letter to the Milwaukee City Attorney. Id. The letter indicated that the settlement was contingent on the approval of the Common Council of the City of Milwaukee. Id. at 61. However, Kocinski withdrew her consent to the settlement shortly after the offer was mailed to the City Attorney. Id. This objection and withdrawal occurred prior to the satisfaction of the contingency, as the Milwaukee Common Council had not yet approved the settlement. Id. This court concluded that because Kocinski's revocation was communicated to the City prior to the City's written acceptance, the offer was properly revoked and an enforceable settlement was never reached. Id. at 71.

¶ 28. When terms of a contract specify that the contract must be accepted within a particular period of time, the contract must be accepted within the time limit expressed. Conrad Milwaukee Corp. v. Wasilewski, 30 Wis. 2d 481, 485-86, 141 N.W.2d 240 (1966) (concluding that acceptance of a contract must be made within the time limit prescribed.); C.G. Schmidt, Inc. v. Tiedke, 181 Wis. 2d 316, 321, 510 N.W.2d 756 (Ct. App. 1993) ("Ordinarily, a contract cannot be formed if acceptance does not occur within the time provided in the offer.") (citing Atlee v. Bartholomew, 69 Wis. 43, 49-50, 33 N.W. 110 (1887)). In the present case, Affordable's attorney made the May 21, 2003, settlement agreement contingent on Haferkorn's consent by noon the following day. Haferkorn did not consent to the settlement agreement by the deadline created by this contingency. Therefore, because the parties failed to agree to a settlement within the time period expressed by Haferkorn's contingency, the May 21, 2003, settlement is not enforceable.

¶ 29. Moreover, subsequent actions by the parties cannot fulfill the statutory requirements. The court of appeals has previously rejected the argument that a party may "subscribe" to an agreement by his or her conduct. Laska v. Laska, 2002 WI App 132, ¶ 11, 255 Wis. 2d 823, 646 N.W.2d 393. The Laska court concluded that the plain meaning of the term "subscribe" requires that the parties' assent or approval be formalized on the document itself. Id., ¶ 12 (citing Kocinski, 154 Wis. 2d at 67-68). Similarly, this court has declined to elevate a telephone conversation with opposing counsel, where counsel stated that a written stipulation would be filed but never was, to the status of a stipulation conforming to the requirements of the statute. Sheridan v. Sheridan, 65 Wis. 2d 504, 512, 223 N.W.2d 557 (1974).

¶ 30. Neither the untimely oral assurances by Affordable's attorney to the other parties, nor its attorney's call notifying the court that a settlement had been reached, satisfy the contingency set forth in the May 21, 2003, agreement. Furthermore, Affordable's subsequent conduct fails to satisfy the statutory requirements that a settlement must be "subscribed" by the party or the party's counsel. See Wis. Stat. § 807.05. Because the record contains no valid written settlement agreement properly subscribed by all parties, we conclude that there exists no enforceable settlement agreement under § 807.05.

IV

¶ 31. Concluding that the requirements of Wis. Stat. § 807.05 were not met and therefore no settlement agreement is enforceable against Affordable, we next examine whether Affordable may pursue its March 2, 2004, claim against Neosho.

¶ 32. Wisconsin Stats. § 807.05 is rooted in the statute of frauds, which provides that particular contracts will not be enforced unless they are in writing. Adelmeyer, 135 Wis. 2d at 371-72. The purpose of requiring certain contracts to be in writing is to "prevent disputes and uncertainties as to what was agreed upon." Id. at 372 (citations omitted). Requiring a contract to be in writing, however, "was intended to prevent fraud and perjury, not to give one party or another a technical escape from a fair and definite agreement." U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 90, 440 N.W.2d 825 (Ct. App. 1989) (footnote omitted). Therefore, even when the statute of frauds requires a contract be in writing, courts will employ the equitable remedy of estoppel in order to avoid an unjust result. Id. "When the elements of equitable estoppel are met, the equities of the situation take the transaction out of the statute of frauds, and the contract is enforceable according to its terms." Id. Consequently, although Wis. Stat. § 807.05 requires a settlement agreement to be formalized in a particular manner, we conclude that the doctrine of equitable estoppel can be applied to settlement agreements that fail to meet the requirement of § 807.05 if all elements of the estoppel doctrine are met.

¶ 33. There are four elements of equitable estop-pel: (1) action or non-action; (2) on the part of one against whom estoppel is asserted; (3) which induces reasonable reliance thereon by the other, either in action or non-action; (4) which is to the relying party's detriment. Hobart, 281 Wis. 2d 628, ¶ 36.

¶ 34. Affordable concedes that the first two elements have been met. We therefore examine whether the undisputed facts, and any reasonable inferences drawn from the undisputed facts in the light most favorable to Affordable, support a finding that the third and fourth elements of estoppel are present, and, if so, whether the circuit court properly exercised its discretion in applying the doctrine.

A

¶ 35. Affordable contends that there is nothing that Affordable did or failed to do that would have induced reasonable reliance by Neosho. According to Affordable, Neosho knew or should have known that there was no valid settlement agreement when Affordable did not consent to the May 21, 2003, settlement agreement by noon on May 22, 2003, as required by Affordable's contingency.

¶ 36. Neosho asserts that it reasonably relied on Affordable's representations that Affordable would agree to the settlement and on the fact that Neosho received a settlement check from Acuity, Affordable's insurer. In addition, Neosho contends it reasonably relied on the fact that Affordable did nothing when Acuity sent the check accompanied by a letter stating that the case was settled, and did nothing when the circuit court dismissed the original case for its failure to prosecute. Together, what Affordable did and did not do, according to Neosho, resulted in Neosho's reasonable reliance that the case had been settled.

¶ 37. The court of appeals agreed with Neosho and found that the circuit court properly determined that Neosho (as well as Acuity and General Casualty) reasonably relied on the May 21, 2003, settlement agreement. The court of appeals concluded that the facts in the record supported a finding that Neosho reasonably believed Affordable accepted the settlement. Affordable, 286 Wis. 2d 403, ¶ 19.

¶ 38. Because this case involves a review of a grant of summary judgment for Neosho, we must make every inference from the undisputed facts in favor of Affordable. Upon review, we conclude that the record supports the conclusions by the circuit court and the court of appeals, which determined that Neosho reasonably relied on Affordable's actions and non-actions.

¶ 39. Affordable's attorney assured Neosho that Affordable would approve the settlement. Affordable also notified its attorney, who notified Acuity, that Affordable accepted the terms of the settlement. In addition, Neosho received a letter from Acuity that announced the case had settled and was accompanied by releases, stipulations, and orders for dismissal, as well as Acuity's payment to Neosho of $5,000, per the terms of the settlement agreement, and Affordable made no efforts to correct or clarify its position regarding the correspondence to Neosho from Acuity. Similarly, Affordable took no action when, almost two years after Affordable filed its original claim, the circuit court warned the parties it would dismiss the case for failure to prosecute, and later dismissed the case because the matter had not been diligently prosecuted.

¶ 40. The actions and non-actions by Affordable lead to only one reasonable inference: that Affordable accepted the terms of the May 21, 2003, settlement. Affordable had knowledge that the other parties were relying upon the settlement agreement, yet made no attempt to clarify its position. This court has previously concluded that a party's failure to act can amount to acquiescence by silence. Wisconsin Brick & Block Corp. v. Vogel, 54 Wis. 2d 321, 328, 195 N.W.2d 664 (1972) (reasoning that the party "had actual knowledge of the sale and knowledge the other parties were relying upon the sale and it made no protest under circumstances when a protest ought to have been made by a reasonable [person]."). When Acuity informed the other parties that the case was settled, Affordable remained silent. When the circuit court notified the parties that it would dismiss the case for failure to prosecute, Affordable remained silent. Affordable remained silent even though it had actual knowledge .that the other parties were relying on the settlement agreement.

¶ 41. Reviewing all of Affordable's actions and non-actions together, the only reasonable inference that Neosho could have made was that Affordable accepted the terms of the settlement. We therefore conclude that Neosho reasonably inferred that Affordable had accepted the settlement.

B

¶ 42. In addition to the requirement that Neosho's belief was reasonable, Affordable's actions or non-actions must have caused Neosho to change its position to its detriment. Milas, 214 Wis. 2d at 13.

¶ 43. Although silence or non-action generally cannot be construed as acceptance, Shearer v. Dunn County Farmers Mut. Ins. Co., 39 Wis. 2d 240, 246-47, 159 N.W.2d 89 (1968) (citing Shakman v. United States Credit Sys. Co., 92 Wis. 366, 375, 66 N.W. 528 (1896)), this court has previously concluded that when a party's silence leads others to believe that the offer has been accepted, acceptance may be inferred if the party's conduct causes others to change their position to their detriment, satisfying the elements of equitable estop-pel. Vogel, 54 Wis. 2d at 328.

¶ 44. Affordable asserts that Neosho has lost neither time nor resources in defending the original claim because it had only mediated the claim and the claim had not gone to trial, and that mediation conferences often end with no settlement. Affordable also asserts that the approximate ten-month delay in refiling this claim is not detrimental to Neosho.

¶ 45. In contrast, Neosho contends that it relied on Affordable's actions and non-actions to its detriment by foregoing legal alternatives, spending substantial resources litigating the case the first time, and spending additional resources defending against the present claim.

¶ 46. Upon review, we find no view of the facts that reasonably supports Affordable's position. Under the terms of the May 21, 2003, settlement, Neosho accepted $5,000 from Acuity, and agreed not to bring future claims or lawsuits against Affordable arising out of the facts and issues from the lawsuit. This $5,000 payment was $74,000 less than the amount Neosho claimed it was owed by Affordable. Because Neosho believed it had reached a settlement with Affordable, Neosho relinquished all other legal claims, including a suit against Affordable for full restitution.

¶ 47. Moreover, believing that Affordable had agreed to the terms of the settlement, Neosho did not object when the circuit court dismissed the case without prejudice for Affordable's failure to prosecute the case. Under Wisconsin law, a dismissal for failure to prosecute should "operate [] as an adjudication on the merits ... Wis. Stat. § 805.03. Neosho did not object to the circuit court improperly dismissing the case without prejudice because Neosho reasonably believed Affordable had agreed to the terms of the settlement. Because the case was dismissed without prejudice, Affordable was not precluded from refiling the same claims, and Neosho has been forced to relitigate the same claims already raised and dismissed for failure to prosecute five years earlier. Neosho has expended numerous additional resources to defend against this second incarnation of the same claims.

¶ 48. The record clearly supports the conclusion that Affordable's actions and non-actions caused Neosho to change its position to Neosho's detriment.

¶ 49. Finding that the .record supports the conclusion that all the elements of equitable estoppel have been met, we also conclude that the circuit court did not erroneously exercise its discretion when it applied the estoppel doctrine. Reviewing the record and the trial court's findings, and considering the overall conduct of Affordable, we conclude that the reliance by Neosho was reasonable. Affordable's acts and omissions, such as its failure to object to the settlement checks issued by Acuity, induced Neosho to rely to its detriment. It would be unjust to allow Affordable to now pursue its claims against Neosho. We conclude, therefore, that the trial court properly invoked the doctrine of equitable estop-pel.

V

¶ 50. Finally, we address whether summary judgment was appropriately granted. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2).

¶ 51. We agree with the court of appeals that the material facts underlying the disputed settlement agreement are that Affordable's attorney included a contingency on the mediated agreement that was never met, and that Tracy Haferkorn never subscribed to the formalized settlement document. Affordable, 286 Wis. 2d 403, ¶ 25. As such, we agree that only questions of law remained: (1) "whether the mediated agreement conformed to the requirements for an agreement under Wis. Stat. § 807.05;" and (2) whether the doctrine of equitable estoppel was properly applied by the circuit court to preclude Affordable from proceeding on its claim. Based on our review of the record, because we conclude that there exists no genuine issues of material fact, nor reasonable alternative inferences that may be drawn from the undisputed facts in favor of Affordable's position, we conclude that the circuit court appropriately granted summary judgment in favor of Neosho.

YI

¶ 52. We conclude that the circuit court properly granted Neosho summary judgment when it determined that Affordable's claim was equitably estopped. Although the settlement agreement does not meet the statutory requirements established in Wis. Stat. § 807.05, Affordable is nonetheless estopped from pursuing its claim because actions and nonactions by Affordable induced reasonable reliance by Neosho to Neosho's detriment. The record contains no genuine issues of material fact, and no reasonable alternative inferences that can be drawn from undisputed material facts, sufficient to warrant a trial. We therefore affirm the court of appeals.

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

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

       According to the record, General Casualty had paid $10,000 to Neosho for damages that were the subject of its counterclaim against Affordable.

       Janice Haferkorn is an employee of Affordable and the wife of Affordable's owner, Tracy Haferkorn.

       The original suit was filed in Washington County. This suit was filed in Waukesha County. However, by stipulation, the second suit was transferred to Washington County.

         Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2005 WI App 189, ¶¶ 13, 23, 26, 286 Wis. 2d 403, 703 N.W.2d 737.

       "[T]he requirement that a name be 'subscribed' is to be distinguished from the requirement that there be a 'signature.' ... A signature is not required by sec. 807.05." Kocinski v. Home Ins. Co., 154 Wis. 2d 56, 64, 452 N.W.2d 360 (1990).

       Even if we were to construe (we do not) a timely oral response as having satisfied the statutory requirements, as the deadline was contained in the written agreement, it is clear that no such response was timely made that satisfied the contingency.

       According to Neosho's counterclaim filed on April 19, 2004, Affordable caused significant property damage to a lathe, resulting in actual damages in excess of $25,000 to repair the damaged lathe. Neosho further claimed that it sustained additional damages in excess of $54,000.

        Affordable, 286 Wis. 2d 403, ¶ 25.