author: CANE, C.J.

text:
    James E. Vieau, Plaintiff-Appellant, v. American Family Mutual Insurance Company and Acuity, a mutual insurance company, Defendants-Respondents.
    Court of Appeals

      No. 04-1358.

      Submitted on briefs December 13, 2004.

    Decided January 19, 2005.

    2005 WI App 34
    (Also reported in 693 N.W.2d 127.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert J. Janssen and Christina L. Peterson of Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C. of De Pere.
    On behalf of the defendant-respondent, American Family Mutual Insurance Company, the cause was submitted on the brief of Jonathan M. Menn of Menn, Teetaert & Beisenstein, Ltd. of Appleton.
    On behalf of the defendant-respondent, Acuity, the cause was submitted on the brief of Robert L. Mc-Cracken of Nash, Spindler, Grimstad & McCracken, LLP of Manitowoc.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 5-11-2005.

   CANE, C.J.

¶ 1. James Vieau appeals orders granting summary judgment to American Family Mutual Insurance Company and Acuity in this personal injury case. Vieau also appeals the judgment that the reducing clause in his Acuity policy applied, lowering the underinsured motorist (UIM) coverage from $50,000 to $25,000. Vieau argues that UIM coverage is available under his mother's American Family insurance policy because Wis. Stat. § 632.32(6)(b)l. prohibits all policies that exclude "relatives" from coverage. He also claims, again based on § 632.32(6)(b)l., that coverage exists under the driver's Acuity policy because a policy cannot define "underinsured motor vehicle" to exclude vehicles owned, furnished or made available "by you or a relative." Finally, Vieau asserts that Acuity cannot reduce the UIM coverage under his own policy by the amount paid by the driver's insurer because the reducing clause is contextually ambiguous. We disagree and affirm.

Background

¶ 2. Vieau and Shane Kaczrowski were involved in a one vehicle accident that seriously injured Vieau, a passenger in the vehicle, leaving him with over $60,000 in medical bills. The accident occurred when Kac-zrowski, who was driving his 1993 GMC truck, attempted to negotiate a curve; the truck crossed the center lane, traveled back into its own lane, slid into a ditch, struck an embankment, flew into the air, and then hit the ground and rolled several times.

¶ 3. Three insurance policies in force at the time of the accident might have provided coverage for Vieau's injuries. The first policy belonged to Vieau's mother who insured her Plymouth Acclaim with American Family. His mother's policy had UIM coverage for $100,000 per person and $300,000 per accident. The second was Kaczrowski's Acuity policy, which had bodily injury liability limits of $25,000 each person and $50,000 each occurrence; this policy also had UIM coverage with limits of $50,000 each person and $100,000 each accident. The third was Vieau's policy with Acuity, insuring his Ford truck; that policy had UIM limits of $50,000 each person and $100,000 each accident.

¶ 4. Vieau filed a complaint against American Family, Kaczrowski, Acuity and Manitowoc County, seeking UIM coverage and punitive damages from the carriers and Kaczrowski and subrogation on behalf of the county. American Family moved for summary judgment, claiming Vieau's mother's policy did not provide UIM coverage to Vieau because he owned his own vehicle. Acuity requested summary judgment as well, arguing that Kaczrowski's policy did not provide coverage because Kaczrowski's vehicle was not an "un-derinsured vehicle" under policy terms. Acuity also claimed that the reducing clause in Vieau's own policy lowered his UIM coverage from $50,000 to $25,000— based on the bodily injury liability payments Vieau had received under Kaczrowski's policy. In March 2004, the circuit court granted summary judgment to Acuity and American Family. Vieau now appeals.

Discussion

¶ 5. We review grants of summary judgment applying the same methodology as the circuit court. Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 17, 263 Wis. 2d 207, 665 N.W.2d 181. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). Because none of the parties argues there are material issues of fact, and we perceive none, we restrict our inquiry to whether American Family and Acuity were entitled to judgment as a matter of law.

¶ 6. The interpretation of an insurance contract is a matter of law this court reviews de novo. Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis. 2d 617, 665 N.W.2d 857. We construe insurance policies to give effect to the parties' intent. Id. If the language of a policy is clear, we enforce it as written, without turning to rules of construction or case law. Id., ¶ 13. Words and phrases in an insurance policy are ambiguous if they are so imprecise or elastic as to preclude any certain interpretation or if they are susceptible to more than one reasonable interpretation. Frost v. Whitbeck, 2002 WI 129, ¶ 18, 257 Wis. 2d 80, 654 N.W.2d 225. Policy terms may be inherently ambiguous or may become ambiguous in the context of the insurance policy as a whole. Id. When we read ambiguous terms in an insurance policy, we construe them in favor of the insured, while exclusions are narrowly construed against the insurer. Id., ¶ 19.

Is American Family's Resident Relative Exclusion Permissible?

¶ 7. Vieau argues that the omnibus insurance statute applies to indemnity as well as liability insurance and no UIM policy "may exclude from the coverage afforded or benefits provided. . . Persons related by blood, marriage or adoption to the insured." Wis. Stat. § 632.32(6)(b)l.; see Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, ¶ 30, 248 Wis. 2d 1031, 637 N.W.2d 45. Vieau thus concludes that American Family is prohibited from defining relative as "a person living in your household, related to you by blood marriage or adoption" who does not own "a motor vehicle other than an off-road vehicle" because that definition denies coverage to Vieau under his mother's policy. We disagree.

¶ 8. This court has said that Wis. Stat. § 632.32(6)(b)l. of the omnibus insurance statute prohibits relative exclusions in liability policies, but does not apply to indemnity coverage such as UIM. See Peabody v. American Fam. Mut. Ins. Co., 220 Wis. 2d 340, 351, 354, 582 N.W.2d 753 (Ct. App. 1998). Vieau contends that Peabody is no longer good law because the supreme court has since decided that § 632.32 applies to "all motor vehicle insurance policies issued or delivered in Wisconsin." Mau, 248 Wis. 2d 1031, ¶ 30. We are not persuaded that Mau goes so far — although we are aware that a recent decision of this court, recommended for publication, appears to silently overrule Peabody.

¶ 9. Mau refers to Peabody's conclusions — "[s]ome earlier cases suggest that certain provisions of [Wis. Stat.] § 632.32 apply only to liability policies, not indemnity insurance" — without comment. Mau, 248 Wis. 2d 1031, ¶ 30. Mau then identifies several subsections of § 632.32 whose plain language demonstrates that they apply to indemnity insurance as well. Id. Vieau thus cites dicta indicating, at most, that Peabody's language swept more broadly than its conclusion required. Mau, 248 Wis. 2d 1031, ¶ 30. One year after it decided Mau, the supreme court carefully compared a resident-relative exclusion to the own-vehicle relative exclusion in Peabody before concluding Peabody did not help determine whether "relative" unambiguously includes all persons related by blood. Frost, 257 Wis. 2d 80, ¶ 28. But Frost did not say Peabody was "inapposite" because it was no longer good law, and it seems unlikely the court would have spent time analyzing a decision it had already overturned. Thus, if we assume that Peabody is still applicable, the omnibus statute would not require coverage.

¶ 10. We need not directly address that issue, however, because even if Vieau is correct and Mau requires that all or part of Wis. Stat. § 632.32 be applied to indemnity insurance, it does not dispose of the question of whether the exclusion at issue here is permissible. To answer that question, we must read subsec. 632.32(5), Permissible Provisions, and subsec. 632.32(6), Prohibited Provisions, together. Under sub-sec. 632.32(5)(e), "[a] policy may provide for exclusions not prohibited by sub. (6) or by applicable law. Such exclusions are effective even if incidentally to their main purpose they exclude persons, uses or coverages that could not be directly excluded under sub. (6)(b)." Subsection 632.32(6)(b)l. prohibits policies that exclude "[p]ersons related by blood, marriage or adoption to the insured" from benefits or coverage. Together, these subsections indicate that exclusion could deny benefits or coverage to someone related to the insured and still be permitted as long as that denial was an incidental effect of a permissible main purpose.

¶ 11. That was the situation in Peabody and that is the situation here. American Family defines "relative" to exclude resident blood relations who own their own cars. The purpose of this exclusion is not to deny coverage or benefits to relatives, but to prevent car owners who either reject UIM coverage or who have independent policies from getting coverage they have not paid for simply because of their resident relative status. See Peabody, 220 Wis. 2d at 354. That goal is not prohibited; indeed, it supports the public policy of protecting insurance companies from being held responsible for risks for which they have neither contracted nor been compensated. See id.

Is Acuity's Definition of an Underinsured Vehicle Permissible ?

¶ 12. Kaczrowski's Acuity policy provides UIM coverage for "bodily injury an insured person is legally entitled to recover from the owner or operator of an underinsured vehicle." Vieau argues, and Acuity does not deny, that he meets the policy's definition of an insured person because he occupied Kaczrowski's insured vehicle. Vieau also argues that Kaczrowski's vehicle was "underinsured" because Kaczrowski's liability policy is less than the limits of liability for UIM coverage. However, the policy further limits the meaning of an "underinsured vehicle" by excluding any vehicle "owned by, furnished to, or available for regular use by you or a relative" with "you" defined as the named insured — in this case, Kaczrowski. To the extent that this definition of "underinsured vehicle" has the potential effect of limiting coverage based on relative status, it is, Vieau contends, impermissible under Wis. Stat. § 632.32(6)(b)l. We disagree.

¶ 13. Even if Peabody has been silently overruled, Mau is not dispositive because it focuses on Wis. Stat. § 632.32(6)(b)2.a, prohibiting exclusions for the "named insured" and passengers in or on "the insured vehicle," rather than the section Vieau relies on. Once again the question is whether, under §§ 632.32(6)(b)l. and 632.32(5)(e), the exclusion is intended to deny coverage or benefits to persons related to the insured or whether that denial is a side effect of a permissible purpose. We conclude that Acuity defines "underinsured motor vehicle" to exclude a vehicle owned by the named insured, not to limit, the rights of relatives, but to prevent the insured from effectively raising liability coverage without paying a higher premium. Because that end is permissible, the exclusion is as well.

Is the Reducing Clause in Vieau's Acuity Policy Contextually Ambiguous ?

¶ 14. The declarations page of Vieau's Acuity policy states that the policy provides UIM coverage of $50,000 per person and $100,000 per accident. The policy also includes, under "Limits of Liability," a clause reducing UIM coverage by the "[a]mounts paid by or on behalf of any person or organization . . . legally responsible for the bodily injury for which the payment is made." According to Vieau, these provisions create "contextual ambiguity," obscuring the fact that Acuity will never actually pay the coverage limits announced on the declarations page.

¶ 15. The principle of contextual ambiguity is well established. Folkman, 264 Wis. 2d 617, ¶ 24. It is equally well established that reducing clauses may be ambiguous within the context of an insurance contract. Id. The test for contextual ambiguity is not subjective, requiring inquiry into an insured's actual understanding, but the familiar objective test of whether words or phrases in the policy, when read in the context of the policy's other language, are susceptible to more than one construction. See i d., ¶ 29 n.13. To answer that question, we typically begin with the declarations page, because that is where the insured looks first, and then proceed to other substantive portions of the policy. See id., ¶¶ 37, 39.

¶ 16. The declarations page of Vieau's policy is unambiguous. It clearly refers to UIM coverage and just as clearly states UIM coverage limits. See, e.g., Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 62, 255 Wis. 2d 61, 647 N.W.2d 223 (a declarations page that did not refer to UIM coverage helped create contextual ambiguity). The policy is only twelve pages long and each section, including Part iy "Underinsured Motorists," is identified with an informative caption. Part IV contains a subsection, "Limits of Liability," that includes the reducing clause Vieau complains of. The clause is marked, not buried in other provisions, and the language of paragraph 3.b, the applicable section of the reducing clause, is straightforward: "[t]he Underin-sured Motorist limits will be reduced by. . . amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury for which the payment is made." Finally, nothing in the "Underinsured Motorist" portion of the policy or in the endorsements appears to imply more than the policy delivers. See Schmitz, 255 Wis. 2d 61, ¶ 72.

¶ 17. Vieau asks us to find inconsistency in the fact that one provision identifies UIM coverage limits as the maximum that will be paid while another reduces coverage by prior payment. The supreme court has held, however, that what the insured buys with UIM coverage is a fixed level of recovery that will be arrived at by combining payments made from all sources. See id., ¶ 38. Such coverage is neither illusory nor misleading if the policy makes that premise clear. See id. Vieau is thus attempting to refight a legal battle that has already been lost by arguing that the effect of an unambiguous reducing clause on clearly stated UIM coverage limits by itself produces contextual ambiguity. See, e.g., Bellile v. American Fam. Mut. Ins. Co., 2004 WI App 72, ¶ 23,272 Wis. 2d 324,679 N.W.2d 827 (Such provisions may conflict, "but they do not create ambiguity, let alone a sufficient degree of contextual ambiguity to engender objectively reasonable alternative meanings.").

By the Court. — Judgment and orders affirmed.

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

       Acuity paid Vieau $25,000 based on bodily injury liability before this action began.

       Vieau voluntarily dismissed the County from the action and stipulated with Acuity to a partial dismissal of his punitive damages claim; all parties then stipulated to the dismissal of Kaczrowski personally.

        Progressive No. Ins. Co. v. Hall, No. 04-0688, unpublished slip op. ¶ 14 (WI App. Dec. 21, 2004) (Without reference to Peabody, the court concludes: "[w]e ... read Man's listing of cases and statutes ... as examples supporting the proposition that the omnibus statute applies to both liability and indemnity insurance.").

       The court points specifically to Wis. Stat. §§ 632.32(4), (4)(m), (5)(g), (5)(i) and (5)(j). It also notes that it has applied Wis. Stat. §§ 632.32(4), (4m)(d),(5)(j), and (6) to indemnity insurance.

        Mau never explicitly states that Wis. Stat. § 632.32 as a whole applies to all indemnity policies perhaps because the clause at issue there, an excess policy with both UM and UIM coverage, was liability coverage not indemnity coverage. See Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, ¶ 30, 248 Wis. 2d 1031, 637 N.W.2d 45.

       The fact that the supreme court declined to review Peabody v. American Fam. Mut. Ins. Co., 220 Wis. 2d 340, 582 N.W.2d 753 (Ct. App. 1998), is not, despite American Family's arguments, relevant to the question of whether Mau reversed the court of appeals' decision.

       The bodily injury liability limits are $25,000 per person and $50,000 per occurrence. Acuity thus defines "underinsured motor vehicle" by comparing the tortfeasor's limits of liability to the insured's limits of UIM coverage, marking the policy as one designed to "put the insured in the same position as he [or she] would have occupied had the tortfeasor's liability limits been the same as the underinsured motorist limits purchased by the insured." See, e.g., Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 18, 255 Wis. 2d 61, 647 N.W.2d 223.

       Vieau does not claim that the Acuity definition of "under-insured motor vehicle" impermissibly excludes a "passenger in or on the insured vehicle" under Wis. Stat. § 632.32(6)(b)2.a, so we do not address that issue here.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    Burbank Grease Services, LLC, Plaintiff-Appellant, v. Larry Sokolowski, United Grease LLC and United Liquid Waste Recycling, Inc., Defendants-Respondents.
    Court of Appeals

      No. 04—0468.

      Submitted on briefs September 7, 2004.

    Decided January 20, 2005.

    2005 WI App 28
    (Also reported in 693 N.W.2d 89.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael L. Hermes and Christopher M. Toner of Metzler and Hager, S.C., Green Bay.
    On behalf of the defendants-respondents, Larry Sokolowski, the cause was submitted on the brief of Stephen J. Eisenberg and Pam M. Baumgartner of Eisenberg Law Offices, S.C., Madison; and on behalf of the defendants-respondents, United Grease, LLC and United Liquid Waste Recycling, Inc., the cause was submitted on the brief of David E. McFarlane and Mark H.T. Fuhrman of Bell, Gierhart & Moore, S.C., Madison.
    Before Dykman, Vergeront and Higginbotham, JJ.

       Petition to review granted 5-11-2005.

   VERGERONT, J.

¶ 1. Burbank Grease Services, LLC, appeals the circuit court's order dismissing on summary judgment its claims of misappropriation of a trade secret, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and computer crimes. Based on the undisputed facts, we conclude: (1) the customer information Burbank asserts is a trade secret does not meet the standard in Wis. Stat. § I34.90(l)(c)l; (2) the claims of breach of fiduciary duty against Larry Sokolowski and aiding and abetting that breach against United Grease, LLC and United Liquid Waste Recycling, Inc., are preempted by § 134.90(6); and (3) Sokolowski did not take computer data from Burbank without authorization in violation of Wis. Stat. § 943.70(2)(a)6. Accordingly, the circuit court correctly granted summary judgment against Burbank on the four claims and we affirm.

BACKGROUND

¶ 2. Burbank is engaged in the business of collecting and processing used restaurant fry grease, trap grease, and industrial grease. At the relevant time, Burbank had approximately 11,250 customers in Wisconsin and 3,200 in surrounding states. The majority of Burbank's customers are restaurants; at the relevant time about 65% were restaurants, about 34% were grease trap customers, and less than 1% — about fifteen —were industrial customers. Sokolowski was employed by Burbank in various management positions from November 1997 to April 2001. Approximately six months prior to leaving Burbank, Sokolowski was made procurement/territory manager. In that position he oversaw sales people, managed customer relations with industrial clients, and prepared spreadsheets and billings for the accountant. During Sokolowski's employment he sometimes worked at home to meet deadlines, with the knowledge and approval of Burbank.

¶ 3. In October 1998, Burbank distributed a code of conduct that it required all managers to acknowledge and adhere to. Sokolowski acknowledged in writing that he received the code. The code provided that "[n]o ... employee shall disclose any confidential or privileged information to any person within the Company who does not have a need to know or to any outside individual or organization except as required in the normal course of business." In April 1999, all Burbank employees received an employee handbook that contained a provision stating that employees who improperly used or disclosed trade secret or confidential business information, which was defined to include customer lists, would be subject to disciplinary action including termination. The provision also stated that employees may be required to sign a nondisclosure agreement as a condition of employment. Sokolowski was never asked to sign a nondisclosure agreement and there is no evidence any other employee was asked to do so. Sokolowski was also never asked to sign a noncom-pete agreement.

¶ 4. In April 2001, Sokolowski resigned his employment with Burbank and began to work for United Liquid as a sales and customer service representative. United Liquid provides waste and cake sludge waste hauling services to industrial, municipal, and commer-rial clients in Wisconsin, as well as glass, can, and plastic recycling. United Liquid had the ability to handle grease trap collection, but that was a small part of its business. In October 2001, Sokolowski and the shareholders and officers of United Liquid formed United Grease, which began collecting fry grease, trap grease, and industrial grease.

¶ 5. According to Sokolowski's testimony, sometime after United Grease was formed, he discovered that he still had materials at home from projects he had worked on at home while employed by Burbank. The materials relevant to this appeal are: (1) a hardcopy of a December 2000 partial list of Burbank's grease trap customers, containing about 2,400 names, phone numbers and addresses, sometimes a contact person, the total gallons for the grease traps, and pricing for the small restaurants but no pricing for chain restaurants and large industrial customers; (2) on a computer disk, a 1998 spreadsheet of Burbank's industrial clients that showed the amount of grease collected from each customer times the market rate less a processing fee, which determined what Burbank would pay the customer for the material collected; and (3) also on the computer disk, a spreadsheet showing the amount of collections and revenues per customer for certain drivers in 1998, organized by the driver's route. We will refer to these three items of information collectively as Burbank's "customer information." It is undisputed that, although Burbank authorized Sokolowski to take home information to work on projects for Burbank, including customer information, when Sokolowski left Burbank's employ, Burbank did not ask Sokolowski whether he had any customer or other information from Burbank at home or ask him to return any such information.

¶ 6. Sokolowski testified that, after United Grease had been in operation several months, he brought the December 2000 grease trap customer list and the computer disk to work. He entered information from the 2000 grease trap customer list into United Liquid's computer system, including the name of the restaurant, phone number, address, approximate size of the grease trap, and the approximate pricing, and he used this information to solicit customers for United Grease. Sokolowski also testified that he used the 1998 spreadsheet of Burbank's industrial clients to create his own spreadsheet to use in soliciting industrial customers for United Grease. He did not, he testified, use the 1998 driver spreadsheet.

¶ 7. According to Sokolowski, United Grease acquired about eighty fry grease customers, almost all former Burbank customers, and 157 grease trap customers, of which all but sixty to seventy were former Burbank customers. As for industrial customers, the evidence shows that United Grease acquired either one or two of Burbank's former customers.

¶ 8. Eventually Burbank became aware that Sokolowski was soliciting its customers and filed this action. The complaint alleged: (1) Sokolowski misappropriated Burbank's trade secrets in violation of Wis. Stat. § 134.90; (2) Sokolowski breached his fiduciary duty to his principal, Burbank; (3) United Grease and United Liquid Waste aided and abetted Sokolowski in breaching his fiduciary duty; and (4) Sokolowski willfully and knowingly took possession of computer data from Burbank's computer system without authorization in violation of Wis. Stat. § 943.70(2). All- parties filed motions for summary judgment and the circuit court granted the defendants' motions, dismissing the complaint.

¶ 9. The circuit court agreed with the parties that there were no genuine issues of material fact. With respect to the trade secret claim, the circuit court concluded that no independent economic value was derived from the customer information because it was generally known and readily ascertainable by proper means such as approaching restaurant personnel and inquiring about their rates and, alternatively, Burbank did not make reasonable efforts to maintain the secrecy of the information. With respect to the two breach of fiduciary duty claims, the court agreed with the defendants that these claims were preempted by Wis. Stat. § 134.90(6). Finally, in addressing Burbank's arguments that Sokolowski committed a computer crime under Wis. Stat. § 943.70(2), the court concluded there was no violation of subd. (2)(a)4 because Sokolowski was authorized to take possession of the computer disks at the time he took possession. The court declined to address Burbank's arguments that Sokolowski violated other subdivisions of para. (2) (a) because Burbank had not pleaded those violations in its complaint. Burbank challenges on appeal the circuit court's grant of summary judgment against it on these four claims.

DISCUSSION

¶ 10. In reviewing the grant or denial of a summary judgment, we apply the same methodology as the trial court and review de novo the grant or denial of summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is proper if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). In evaluating the evidence, we draw all reasonable inferences from the evidence in the light most favorable to the non-moving party. Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473 (1980). Whether an inference is reasonable and whether more than one reasonable inference may be drawn are questions of law. Hennekens v. Hoerl, 160 Wis. 2d 144, 162, 465 N.W.2d 812 (1991).

I. Misappropriation of a Trade Secret, Wis. Stat. § 134.90

¶ 11. Wisconsin Stat. § 134.90(2) provides that "[n]o person .. . may misappropriate ... a trade secret by ... [acquiring the trade secret of another by means which the person knows or has reason to know constitute improper means ... or by disclosing or using without express or implied consent the trade secret of another" under certain specified circumstances. Section 134.90(1)(c) defines a trade secret as

[information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply:
1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.

¶ 12. Burbank asserts there is evidence showing that its customer information meets the definition of a trade secret and therefore the circuit court erred in weighing the competing evidence rather than letting a jury decide. We observe that this appellate position appears to be inconsistent with Burbank's argument to the circuit court that it was entitled to summary judgment on the trade secret claim. Nevertheless, because we independently review the record on an appeal from a summary judgment, we will address Burbank's appellate argument that there are factual disputes that are necessary to resolve before deciding if the criteria in Wis. Stat. § 134.90(l)(c) are met.

¶ 13. We first consider Wis. Stat. § 134.90(l)(c)l. Burbank contends the evidence shows that its customer information is not generally known or readily ascertainable and that it is of economic value to a competitor like United Grease because it saves United Grease time necessary to compile its own list of customers. Burbank also argues that it is advantageous for a competitor to know the prices Burbank charges when soliciting Burbank's customers because the competitor can then offer a lower price.

¶ 14. Customer lists may, depending on the circumstances, meet the definition of a trade secret under Wis. Stat. § 134.90(l)(c). Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 857, 434 N.W.2d 773 (1989). In cases decided before § 134.90 was enacted, the supreme court applied the six factors in Restatement, 4 Torts, § 757 to decide whether customer lists were trade secrets. The supreme court decided customer lists were not trade secrets in the following cases: Abbott Labs. v. Norse Chem. Corp., 33 Wis. 2d 445, 463, 466, 147 N.W.2d 529 (1967) (names, addresses, and contact persons for customers of an artificial sweetener, where evidence was that the customers were common knowledge within the industry and the lists did not contain complicated marketing data on projected needs of the customers or market habits); American Welding & Eng'g Co. v. Luebke, 37 Wis. 2d 697, 702, 155 N.W.2d 576 (1968) (names, addresses, phone number of the customer, sometimes the names of a number of employees and positions of various individuals for customers of a manufacturer of steel products); Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 211-12, 216, 267 N.W.2d 242 (1978) (talent agency's list of club names where evidence showed the names were readily available by means of inquiry from established sources— telephone directories, chambers of commerce, and newspaper advertising); and Corroon & Black v. Hosch, 109 Wis. 2d 290, 296-97, 325 N.W.2d 883 (1982) (insurance agency's list of names and address of insurance policy holders, contact names, renewal dates, and amounts of coverage). The rationale underlying these cases, in general, is that the customer lists involved were "merely the outgrowth of normal marketing endeavors" and "the time and money expended. . . were spent on develop [ing] the market [that] the. . . list represented], rather than on the compilation of the information." Id. at 297.

¶ 15. In a subsequent case, B.C. Ziegler & Co. v. Ehren, 141 Wis. 2d 19, 28-29, 414 N.W.2d 48 (1987), the supreme court did accord trade secret status to a securities underwriter's list that identified persons who had invested in the securities, had sufficient money to make investments, and regularly invested in bonds as opposed to other investments. The court distinguished this list from those in the prior cases on, among other grounds, the fact that this list contained "specialized information" and was not "merely a function of record keeping, a byproduct of a business, but was in a significant sense a vital asset of the business upon which efforts and money were expended in its own right." Id. at 28.

¶ 16. After Wis. Stat. § 134.90 was enacted, the supreme court in Minuteman, 147 Wis. 2d at 857, reversed and remanded the lower courts' decisions that a furniture stripper's list of inquiries in response to advertisements and list of customer names and orders were not trade secrets. The supreme court did so because the lower courts had applied the six Restate-xnent factors. While the supreme court stated that those factors were still helpful, id. at 853, it concluded that a remand was necessary to allow the circuit court to apply the legal standard embodied in the recently enacted § 134.90. Id. at 857. In noting that "[s]ome customer lists are afforded protection under the UTSA [Uniform Trade Secret Act]," the supreme court quoted with approval from an Indiana case:

This is not to say that every customer list would be denied trade secret status under the uniform act. We are well aware, for example,.. . that in certain sectors of the business community identical or nearly identical products and/or services are sold to a small, fixed group of purchasers. In such an intensely purchaser-oriented market, a supplier's customer list could well constitute a trade secret.

Id. (citation omitted).

¶ 17. This court relied on the above-quoted language in ECT Int'l, Inc. v. Zwerlein, 228 Wis. 2d 343, 353, 597 N.W.2d 479 (Ct. App. 1999), to conclude that the customer lists and prospect lists belonging to the distributor of software used in the design and documentation of electrical systems met the requirements of Wis. Stat. § 134.90(1)(c)l.

¶ 18. Other than ECT, we are not aware of any reported Wisconsin case decided after Minuteman that addresses whether a customer list meets the requirements of Wis. Stat. § 134.90(l)(c)l. We are uncertain from our reading of Minuteman whether the supreme court intended that the rationale it had expressed in its previous decisions on customer lists remain valid after the enactment of § 134.90. However, we need not resolve that uncertainty in this case because a straightforward application of the language of § 134.90(1) (c)l to the undisputed facts of this case persuades us that the names, addresses, and contact persons of Burbank's customers are readily ascertainable by proper means. The undisputed evidence is that any business that cooks or processes food is a potential customer for the services Burbank provides, and Burbank's own witnesses acknowledge that anyone can identify the businesses that likely have a need for the services Burbank provides from such common sources as the telephone book, the internet, and trade associations. As for contact persons, the evidence is that one can find that out by asking at the business.

¶ 19. Apparently aware of the weakness of an argument that its customers' names, addresses, and contact persons are not readily ascertainable, Burbank emphasizes that the inclusion of the pricing information requires a different result. The undisputed evidence is that the price for the industrial customers was determined by the number of pounds of grease collected times the market rate less a fee for processing, and this was standard in the industry. According to Burbank's witnesses, the charge for fry grease is a per collection charge and for trap grease the charge is per volume with some additional charges if extra services are required. There is no evidence that these methods of charging were unique to Burbank. Sokolowski testified that Burbank had three price groups for fry grease customers when he left and two for trap grease, and there was no contradictory testimony on this point.

¶ 20. Burbank does not appear to assert that its method of establishing a price for customers is unique or complicated; rather, it seeks to protect the information of the actual price charged a customer at a particular time. Burbank relies on testimony that, according to Burbank, shows that customers will not tell a competitor what they are already paying for the services because they are in a better bargaining position if they hear the offer first. This testimony, asserts Burbank, conflicts with Sokolowski's testimony that one can readily find out the price a customer of another company is being charged by asking. Thus, Burbank's position is that it is entitled to a trial on whether the price information accompanying some of the customers' names is a trade secret.

¶ 21. There appears to be no reported Wisconsin case addressing the trade secret status of pricing information. However, because Wis. Stat. § 134.90 is Wisconsin's version of the UTSA, we may look for guidance in decisions of other jurisdictions interpreting this provision. World Wide Prosthetic Supply, Inc. v. Mikulsky, 2002 WI 26, ¶ 9, 251 Wis. 2d 45, 640 N.W.2d 764. In doing so, we bear in mind that § 134.90(7) requires that § 134.90 be "applied and construed to make uniform the law relating to misappropriation of trade secrets among states enacting substantially identical laws."

¶ 22. Generally, it appears that when prices are based on complicated or unique formulas that the customers do not know about, courts conclude the information meets the standard embodied in Wis. Stat. § 134.90(l)(c)l. See, e.g., Pepsico, Inc. v. Redmond, No. 94-C-6838, 1996 WL 3965, ¶¶ 11-12 (N.D. Ill. Jan. 2, 1996); Hydraulic Exch. and Repair, Inc. v. KM Specialty Pumps, Inc., 690 N.E.2d 782, 786 (Ind. Ct. App. 1998). See also Den-Tal-Ez Inc. v. Siemens Capital Corp., 566 A.2d 1214, 1230 (Pa. Super. Ct. 1988) (decided under Restatement of Toets § 757 (1939), not the UTSA). However, when there is no such unique or complicated information behind the pricing, the actual price charged does not meet that standard because — in the absence of special circumstances — it can be readily ascertainable from the customers themselves by proper means. See, e.g., TVS Hydro, Inc. v. Robinson, Nos. 03-1827, 03-1898, 2004 WL 626828, at *5-6 (4th Cir. Mar. 31, 2004 (W Va.)); Unisource Worldwide, Inc. v. Carrara, 244 F. Supp. 2d 977, 986-87 (C.D. Ill. 2003); Conagra, Inc. v. Tyson Foods, Inc., 30 S.W.3d 725, 729-30 (Ark. 2000); Carbonic Fire Extinguishers, Inc. v. Heath, 547 N.E.2d 675, 678 (Ill. App. Ct. 1989). See also Carpetmaster of Latham, Ltd. v. Du Pont Flooring Sys., Inc., 12 F. Supp. 2d 257, 261-62 (N.D. N.Y. 1998) (decided under Restatement of Torts § 757 (1939), not UTSA). One of the special circumstances is a contract that prohibits customers from disclosing the price. See Northern States Power Co. v. North Dakota Pub. Serv. Comm'n, 502 N.W.2d 240, 241, 243 (N.D. 1993).

¶ 23. We conclude this general approach is sound and apply it here. There is no evidence that Burbank's prices are based on information not known to the customers. There is also no evidence of a contract prohibiting Burbank's customers from disclosing the price Burbank charges, nor is there evidence that it is the custom in this industry for customers not to disclose the prices they are charged. Viewed most favorably to Burbank, the evidence from its own witnesses is that customers do disclose the prices they pay, although particular customers may choose not to do so in particular situations. Indeed, the only reasonable inference from the evidence is that Burbank determines what price to charge at least in part based on what competitors are charging, which it learns from customers. We conclude the evidence is insufficient, as a matter of law, to show that the prices Burbank charges its customers are not readily ascertainable by proper means.

¶ 24. Because we conclude the evidence, viewed most favorably to Burbank, does not show that the information Burbank seeks to protect meets the requirements ofWis. Stat. § 134.90(l)(c)l, Burbank is not entitled to a trial on its trade secret claim. This conclusion makes it unnecessary for us to address whether Burbank made reasonable efforts under the circumstances to maintain the secrecy of this information, as required by § 134.90(1)(c)2.

II. Preemption of Breach of Fiduciary Duty Claims, Wis. Stat. § 134.90(6)

¶ 25. Burbank contends the circuit court erred in concluding that its common law breach of fiduciary duty claims — the claim that Sokolowski breached his fiduciary duty to Burbank and the claim that United Grease and United Liquid Waste aided and abetted Sokolowski in that breach — were preempted by Wis. Stat. § 134.90(6). This subsection provides:

(6) Effeot on OtheR Laws, (a) Except as provided in par. (b), this section displaces conflicting tort law, restitutionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret.
(b) This section does not affect any of the following:
1. Any contractual remedy, whether or not based upon misappropriation of a trade secret.
2. Any civil remedy not based upon misappropriation of a trade secret.
3. Any criminal remedy, whether or not based upon misappropriation of a trade secret.

¶ 26. According to Burbank, this provision means that, if a plaintiff has a claim for unauthorized use of confidential information that meets the statutory criteria of Wis. Stat. § 134.90(1) and (2), that claim must be brought under the statute, but if the statutory criteria are not met, there is no preemption of any common law claim that might exist based on the unauthorized use of the information. Alternatively, Burbank argues that, even if § 134.90(6) means that all claims based solely on the unauthorized use of confidential information are preempted, its breach of fiduciary duty claims are not based solely on the unauthorized use of its confidential information and therefore they are not preempted.

¶ 27. The respondents assert that, because the information Burbank seeks to protect does not meet the statutory definition of a trade secret, any claim that is based solely on the unauthorized use of that information is preempted. In their view, the breach of fiduciary duty claims are based solely on the unauthorized use of Burbank's customer information.

¶ 28. The only Wisconsin case we have located discussing Wis. Stat. § 134.90(6) is Minuteman, 147 Wis. 2d 842, 434 N.W.2d 773 (1989). There the court ruled that, based on § 134.90(6)(a), the test it had established for a trade secret in Corroon & Black, 109 Wis. 2d 290, 325 N.W.2d 883 (1982), was no longer the legal standard. 147 Wis. 2d at 852. This brief ruling does not resolve the preemption issues presented on this appeal. We therefore consider cases from other jurisdictions.

¶ 29. The first issue we address is whether Wis. Stat. § 134.90(6)(a) preempts common law claims for unauthorized use of allegedly confidential information that does not meet the statutory definition of a trade secret. Based on our own research and the cases provided by the parties, it is evident that the majority of cases in other jurisdictions addressing this issue have decided that such claims are preempted. The rationale for this conclusion is that the purpose of the preemption provision is to preserve a single tort action under state law for misappropriation of a trade secret as defined in the statute and thus to eliminate other tort causes of action founded on allegations of misappropriation of information that may not meet the statutory standard for a trade secret. Leucadia, Inc. v. Applied Extrusion Techs., Inc., 755 F. Supp. 635, 637 (D. Del. 1991). See also Composite Marine Propellers v. Van Der Woude, 962 F.2d 1263, 1265 (7th Cir. 1992) (the preemption provision of the Illinois statute "abolishe[s] all common law theories of misuse of confidential information .... Unless defendants misappropriated a (statutory) trade secret, they did no legal wrong."); Thomas & Betts Corp. v. Panduit Corp, 108 F. Supp. 2d 968, 971 (N.D. Ill. 2000) (the Illinois Trade Secrets Act was meant" 'to codify all the various common law remedies for theft of ideas'") (citing Learning Curve Toys, L.P. v. Playwood Toys, Inc., No. 94-C-6884, 1999 WL 529572, at *3 (N.D. Ill. July 20, 1999)); Smithfield Ham & Prods. Co., Inc. v. Portion Pac., Inc., 905 F. Supp. 346, 348 (E.D. Va. 1995) (purpose of the preemption provision is to "prevent inconsistent theories of relief for the same underlying harm by eliminating alternative theories of common law recovery which are premised on the misappropriation of a trade secret").

¶ 30. If a common law claim for unauthorized use of information that did not meet the statutory definition of a trade secret were permitted, the result "would undermine the uniformity and clarity that motivated the creation and passage of the Uniform Act." Auto Channel, Inc. v. Speedvision Network, LLC, 144 F. Supp. 2d 784, 789 (W.D. Ky. 2001). See also Bliss Clearing Niagara, Inc. v. Midwest Brake Bond Co., 270 F. Supp. 2d 943, 949 (W.D. Mich. 2003) (allowing otherwise displaced tort claims to proceed on the basis that the information may not rise to the level of a trade secret would defeat the purpose of the UTSA); Thomas & Betts, 108 F. Supp. 2d at 972-73 (if there were no preemption when the confidential information might not rise to the level of a trade secret, the preemption provision would be meaningless).

¶ 31. Burbank appears to argue that our preemption analysis should depend on whether the common law claim is denominated as breach of fiduciary duty rather than unauthorized use of confidential information, perhaps implicitly suggesting that the latter claim would be preempted, but certainly arguing that the former is not. However, the majority of the courts that have considered the issue have not relied on the label of the common law claim, but have examined the facts alleged or proved in support of the claim to determine whether they are the same facts that support the statutory claim for the misappropriation of a trade secret. See, e.g., Weins v. Sporleder, 605 N.W.2d 488, 491 (S.D. 2000). When the common law claims, however denominated, are based solely on the facts that support the statutory claim for a misappropriation of a trade secret, the majority of courts considering this issue have concluded that the common law claims are preempted.

¶ 32. Using this approach, numerous courts have concluded that claims for breach of fiduciary duty are preempted when the breach is the alleged unauthorized use of confidential information. Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1330 (5th Cir. 1994) (Louisiana statute; breach of fiduciary duty claim preempted because based solely on allegations that support misappropriation of trade secret claim).; Composite Marine Propellers, 962 F.2d at 1265; Auto Channel, 144 F. Supp. 2d at 789-90 (breach of fiduciary duty claim preempted to extent it involves disclosure of trade secrets); Automed Techs., Inc. v. Eller, 160 F. Supp. 2d 915, 922 (N.D. Ill. 2001); Thomas & Betts, 108 F. Supp. 2d at 972-73; Thermodyne Food Serv. Prods., Inc. v. McDonald's Corp., 940 F. Supp. 1300, 1309 (N.D. Ill. 1996), Frantz v. Johnson, 999 P.2d 351, 358 n.3 (Nev. 2000) (breach of fiduciary claim and other claims preempted because they are "completely dependent on the facts concerning misappropriation of trade secrets"). The rationale in these cases is that "breaching a duty of loyalty by using confidential information is still misappropriation of a trade secret," Automed Techs, 160 F. Supp. 2d at 922; or, put differently, "fiduciary duty" adds nothing of significance when there is no independent basis for such duty. Composite Marine Propellers, 962 F.2d at 1265.

¶ 33. On the other hand, where a claim for breach of fiduciary duty is based on allegations or factual showings that are not solely dependent on misappropriation of a trade secret or unauthorized use of allegedly confidential information, courts have concluded there is no preemption. Lucini Italia Co. v. Grappolini, 231 F. Supp. 2d 764, 770 (N.D. Ill. 2002) (declining to dismiss claim for breach of fiduciary duty because the factual allegations — that the plaintiffs consultant used his position of trust to contract on his own behalf for his own interests — were independent of the misappropriation of trade secret claim); Automed Techs., 160 F. Supp. 2d at 922 (allowing claim for breach of fiduciary duty to proceed to the extent it was based on soliciting former co-employees to compete against former employer); Paint Brush Corp. v. Neu, 599 N.W.2d 384, 393 (S.D. 1999) (holding that breach of duty of loyalty claim based on evidence that defendant was taking steps to compete with employer while still employed was not preempted).

¶ 34. Burbank urges us to follow the approach of a minority of cases holding that claims are not preempted if they are based on the unauthorized use of information that does not meet the statutory requirements of a trade secret. However, we do not find these cases persuasive. In Combined Metals of Chicago Ltd. P'ship v. Airtek, Inc., 985 F. Supp. 827, 830 (N.D. Ill. 1997), the court agreed with the claimant that dismissal of its claim of breach of a fiduciary duty on preemption grounds was premature, because if the information did not prove to be a trade secret under the Illinois statute, as alleged, the preemption provision was inapplicable. The court's analysis is brief and does not discuss, let alone counter, the reasoning relied on by the many courts that have come to the opposite conclusion.

¶ 35. In Stone Castle Financial, Inc. v. Friedman, Billings and Ramsey & Co., 191 F. Supp. 2d 652, 659 (E.D. Virginia 2002), the court did discuss Smithfield Ham, 905 F. Supp. at 348, and a number of other cases holding that there was preemption, but we do not agree with the Stone Castle court's reading of those cases. The Stone Castle court read them to be dependent upon a determination or assumption that the alleged confidential information met the statutory definition of a trade secret. However, this reading, in our view, overlooks the fundamental reasoning of the cases discussed by the Stone Castle court: but for Combined Metals, the cases are based on the majority view that the UTSA is meant to replace tort claims for unauthorized use of confidential information with a single statutory remedy. The approach of Stone Castle and Combined Metals is inconsistent with this intent, because it allows a tort remedy for the unauthorized use of information that does not meet the statutory criteria for a trade secret.

¶ 36. In Coulter Corp. v. Leinert, 869 F. Supp. 733, 734-36 (E.D. Mo. 1994), the court's decision that the claim of breach of the duty of loyalty was not preempted appears to be based in part on the particular elements of that claim under Florida common law. This is helpful to Burbank only if Wisconsin common law is similar, hut, as we discuss below in paragraph 39, it is not. To the extent the Coulter court's ruling was based on the view that a claim for the unauthorized use of confidential information not meeting the statutory definition of a trade secret is not preempted, the court does not explain why this is a reasonable construction of the statute.

¶ 37. We are persuaded by the reasoning of the great majority of courts that have construed the preemption provision, and we adopt that approach. We conclude that the purpose of Wis. Stat. § 134.90(6) is to make clear that § 134.90 is intended to provide a single, uniform standard for the type of information that, in the absence of a contract, is entitled to protection from misappropriation under civil law. We construe § 134.90(6) to preempt common law claims for unauthorized use of confidential information that does not meet the statutory definition of a trade secret, as well as common law claims, however denominated, that are based solely on allegations or evidence either of misappropriation of a trade secret in violation of § 134.90(1) and (2) or unauthorized use of confidential information. We conclude that this construction best effectuates the purpose of § 134.90(6).

¶ 38. We now turn to the evidence in this case to determine whether there is evidence, in addition to the evidence of the use of Burbank's customer information, that shows that the respondents breached a fiduciary duty or aided and abetted a breach of fiduciary duty. Besides the evidence of the customer information, Bur-hank refers us to the complaint, which contains allegations suggesting that Sokolowski was competing with Burbank while still employed by Burbank. However, while the allegations in the complaint may have been sufficient at an earlier stage to avoid dismissal based on preemption of the fiduciary duty claims, Burbank cannot rely on allegations in the complaint to defeat a motion for summary judgment. See Caraway v. Leathers, 58 Wis. 2d 321, 323, 206 N.W.2d 193 (1973). Burbank points to no evidence, and we see none, that creates a reasonable inference that Sokolowski took any action during his employment that was inconsistent with his duty to his employer.

¶ 39. Burbank may be suggesting that Sokolowski had a duty not to compete with his former employer after he left Burbank's employ. However, that is not the law in Wisconsin. An employee that is an agent for his or her employer owes the employer a duty to act solely for the benefit of the employer during the term of employment; an employee breaches that duty by secretly engaging in competition with the employer during the employment term. General Auto. Mfg. Co. v. Singer, 19 Wis. 2d 528, 534—35, 120 N.W.2d 659 (1963). However, an agent is free to engage in competition with a principal after the employment relationship terminates, Modern Materials, Inc. v. Advanced Tooling Specialists, 206 Wis. 2d 435, 447, 557 N.W.2d 835 (Ct. App. 1996), unless, of course, there is a valid noncompete agreement to the contrary. See Wis. Stat. § 103.465, "Restrictive covenants in employment contracts."

¶ 40. We conclude the claim that Sokolowski breached his fiduciary duty to Burbank is based solely on evidence that he used and disclosed Burbank's customer information after the termination of his employment with Burbank. Accordingly, that claim and the aiding and abetting claim against United Liquid and United Grease are preempted by Wis. Stat. § 134.90(6). The circuit court therefore correctly dismissed both claims.

III. Computer Crime, Wis. Stat. § 943.70(2)(a)(6)

¶ 41. Burbank contends it adequately pleaded and proved a violation of Wis. Stat. § 943.70(2)(a)6, which provides a penalty for anyone who

willfully, knowingly and without authorization ... [discloses restricted access codes or other restricted access information to unauthorized persons. (Footnote added.)

According to Burbank, the court erroneously failed to consider the allegations in the complaint that state a claim for a violation of subd. 6 and instead limited its analysis to the allegations contained in paragraphs 14 and 15 of the complaint, which were labeled "Computer Crime of Sokolowski."

¶ 42. The circuit court concluded the complaint stated a claim for a violation of Wis. Stat. § 943.70(2)(a)4, which prohibits "willfully, knowingly and without authorization ... [t]ak[ing] possession of data, computer programs or supporting documentation." The court apparently focused on the allegations in paragraph 14 that Sokolowski "willfully, knowingly and without authorization of Burbank took possession of computer data from Burbank's computer system in the form of a printout, which he and United Grease have used to improperly solicit business away from Burbank." (Paragraph 15 alleged that this conduct violated Wis. Stat. § 943.70(2) but did not specify the particular subdivision under paragraph (a).) The court then concluded that the undisputed evidence established that Sokolowski took possession of data containing Burbank's customer information while employed by Burbank and with Burbank's authorization. Burbank does not pursue on appeal its argument under subd. 4 but now focuses solely on subd. 6, which the court did not consider because it concluded this violation was not adequately pleaded.

¶ 43. As Burbank implicitly concedes, the circuit court was correct to begin with an analysis of the complaint, because the initial step of the summary judgment methodology is to examine the pleadings to determine whether the plaintiff has stated a claim for relief. Green Spring Farms, 136 Wis. 2d 304 at 315. In doing this analysis, the facts pleaded and all reasonable inferences arising from the factual allegations are accepted as true. Prah v. Maretti, 108 Wis. 2d 223, 229, 321 N.W.2d 182 (1982). Burbank is correct that in Wisconsin a civil pleading need not define issues or state detailed facts; only "fair notice" of what the claim is and the grounds upon which it rests is required. State ex rel. Adell v. Smith, 2001 WI App 168, ¶¶ 5-6, 247 Wis. 2d 260, 633 N.W.2d 231. It is also true that when a court analyzes a complaint to determine whether it states a particular claim for relief, the label given the claim in the complaint is not dispositive. Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 169-70, 172 N.W.2d 647 (1969). Thus, we agree with Burbank that allegations not contained in the paragraphs labeled "Computer Crime of Sokolowski" are properly considered to determine whether the complaint states a claim for relief under any subdivision of Wis. Stat. § 943.70(2)(a); we also agree that the failure to specify a particular subdivision is not fatal. However, we nonetheless conclude that the allegations on which Burbank relies do not state a claim for a violation of § 943.70(2)(a)6.

¶ 44. Burbank relies on these allegations in the complaint to state a claim for a violation of Wis. Stat. § 943.70(2)(a)6:

10. Sokolowski took information he received from Burbank's customer database and entered or directed someone to enter that information into United Grease's computer database.
11. Sokolowski and United Grease are using the valuable and confidential information obtained from Burbank to solicit customers of Burbank to do business with United Grease.
12. As a result of the illegal and unauthorized use of confidential information belonging to Burbank, Sokolowski and United Grease have succeeded in diverting substantial customer relationships away from Burbank, resulting in loss of profits to Burbank.

¶ 45. According to these allegations, Sokolowski took possession of Burbank's computer data without authorization and used it in an unauthorized manner. However, under no reasonable construction of these allegations do they amount to a "disclosure of restricted access codes or other restricted access information." Wis. Stat. § 943.70(2)(a)6. Burbank is implicitly asking this court to construe "access codes or other restricted access information" to include any computer data, but that is not a reasonable construction of the statute. The phrase "[ajccess codes or other restricted access information" plainly refers to codes, passwords, or other information that permits access to a computer system or to programs or data within a system; the phrase does not refer to the system, program, or data accessed. Thus, subd. 6 plainly does not prohibit disclosure of data that is obtained as a result of using a restrictive access code. As we have mentioned above, subd. 4 does prohibit taking possession of data without authorization, hut neither subd. 6 nor any other subdivision prohibits disclosure without authorization of data that is obtained with authorization.

¶ 46. Although we have, consistent with summary judgment methodology, first addressed whether the complaint states a claim for relief for a violation of Wis. Stat. § 943.70(2)(a)6, we also conclude that no evidence shows a violation of subd. 6. That is, the deficiency is not only a pleading deficiency but also a lack of any proof that Sokolowski violated subd. 6. For both these reasons, Burbank is not entitled to summary judgment that Sokolowski violated § 943.70(2)(a)6 nor is it entitled to a trial on that issue. We conclude the circuit court correctly granted summary judgment in Sokolowski's favor on Burbank's claim under § 943.70(2).

By the Court. — Order affirmed.

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

       Burbank was purchased by Anamax Group in 1998, but retained the name "Burbank."

       Burbank's submissions contain conflicting numbers on these points, but the exact numbers do not affect the outcome of this appeal.

       The description of this list is based on Sokolowski's testimony, which was not disputed. He testified that he destroyed the hardcopy and therefore the actual list was not in evidence. There is some inconsistency in Sokolowski's testimony on whether this list contained phone numbers, but we have inferred it did, since that inference is arguably more favorable to Burbank.

       The computer disk also contained additional information from Sokolowski's employment by Burbank that Burbank does not contend is trade secret or confidential information.

       The complaint also alleged claims of interference with business relations by Sokolowski and United Grease and conspiracy by all three defendants. The circuit court granted summary judgment in favor of the defendants on these claims, and Burbank has not appealed the dismissal of those claims.

       The six factors are:
      (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

        Corroon & Black v. Hosch, 109 Wis. 2d 290, 295, 325 N.W.2d 883 (1982) (citing Restatement, 4 Touts, § 757 cmt. b (1939)).

       The Seventh Circuit Court of Appeals, applying Minuteman, concluded that a list of purchasers of a company that produced water treatment chemicals and services was not a trade secret under Wis. Stat. § 134.90 because the "group of purchasers... [were] neither fixed nor small, the products [were] used in ... common items," and "[t]he target market for the products [was] broad . ..." Nalco Chem. Co. v. Hydro Techs., Inc., 984 F.2d 801, 804 (7th Cir. 1993).

       Burbank does not make clear whether there was any information about fry grease customers on the three sets of information it contends are a trade secret, but we include the prices for these customers nonetheless.

       We may cite to unpublished opinions from other jurisdictions. Predick v. O'Connor, 2003 WI App 46, ¶ 12 n.7, 260 Wis. 2d 323, 660 N.W2d 1.

       Because of this conclusion, we need not address the respondents' argument that the 1998 industrial customer information has no economic value because of its age and the 1998 driver list has no economic value for that and other reasons.

       A federal court in Wisconsin adopted this approach in Corporate Express Office Prods, v. Brown, Nos. 00-C-608-C, 00-C-666-C, 2001 WL 34381111, at *12 (WD. Wis. July 18, 2001), concluding that the breach of fiduciary duty claim was preempted insofar as it was based on the allegations of misappropriation of a trade secret, but not preempted insofar as it was based on allegations that the defendant conspired to take business away from his employer and failed to have another employee sign a noncompete agreement. Id. The court went on to conclude, however, that the breach of fiduciary duty claim should nonetheless be dismissed on summary judgment because no evidence was presented to support the allegation regarding the noncompete agreement and the evidence regarding taking business did not establish that the defendant did anything more than investigate other employment opportunities while still employed by the plaintiff. Id. at *13-14.
      Courts have followed this same analysis with other types of common law claims, concluding they are preempted when they are based solely on, or to the extent they are based on, the allegations or the factual showings of unauthorized use of confidential information or misappropriation of a trade secret. See Penalty Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284, 1297-98 (11th Cir. 2003) (Georgia statute; conversion, breach of confidential relationship and duty of good faith, unjust enrichment and quantum meruit); On-Line Techs. v. Perkin Elmer Corp., 141 F. Supp. 2d 246, 260-61 (D. Conn. 2001) (unjust enrichment); Auto Channel, Inc. v. Speedvision Network, LLC, 144 F. Supp. 2d 784, 790, 793, (W.D. Ky. 2001) (unfair competition and misrepresentation); Glasstech, Inc. v. TGL Tempering Sys., Inc., 50 F. Supp. 2d 722, 730-31 (N.D. Ohio 1999) (common law claim of misappropriation of trade secrets as well as quantum merit and unjust enrichment); Powell Prods., Inc. v. Marks, 948 F. Supp. 1469, 1474-76 (D. Colo. 1996) (unfair competition and conversion); Web Communications Group, Inc. v. Gateway 2000, Inc., 889 F. Supp. 316, 321 (N.D. Ill. 1995) (unjust enrichment); Hutchison v. KFC Corp., 809 F. Supp. 68, 71-72 (D. Nev. 1992) (Nevada statute, unjust enrichment and unfair competition); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 755 F. Supp. 635, 636-37 (D. Del. 1991) (unfair competition/unfair trade or business practices); R.K. Enterprise, LLC v. Pro-Comp Mgmt., Inc., 158 S.W2d 685, 689-90 (Ark. 2004) (conversion and conspiracy); Savor, Inc. v. FMR Corp., 812 A.2d 894, 898 (Del. 2002) (unfair competition and conspiracy); Weins v. Sporleder, 605 N.W.2d 488, 491 (S.D. 2000) (fraud and deceit); Ed Nowogroski Ins., Inc. v. Rucker, 944 P.2d 1093, 1097 (Wash. App. 1997) (misuse of confidential information and intentional interference).

        Conversely, courts have concluded there is no preemption when the other types of common law claims are based on allegations or factual showings that are either independent of or in addition to those that form the basis for a claim of misappropriation of a trade secret. See Bliss Clearing Niagara, Inc. v. Midwest Brake Bond Co., 270 F. Supp. 2d 943, 949-50 (W.D. Mich. 2003) (tortious interference with contract and unfair competition); Powell Products, 948 F. Supp. at 1474 (interference with business relationships, conspiracy, and conversion); Smithfield Ham and Prods. Co., Inc. v. Portion PAC, Inc., 905 F. Supp. 346, 348, 351 (E.D. Va. 1995) (tortious interference with contractual relations and business expectancy); Fred's Stores of Mississippi, Inc. v. M & H Drugs, Inc., 725 So. 2d 902, 908 (Miss. 1998) (conspiracy).

       The two other cases on which Burbank relies do not support its position. In Micro Display Sys., Inc. v. Axtel, Inc. 699 F. Supp. 202, 205 (D. Minn. 1988), the court denied summary judgment, on preemption grounds, for claims of interference with contractual relations, misappropriation, conversion, misrepresentation, conspiracy, unjust enrichment, and unfair competition claims because there were allegations or evidence of wrongdoing in addition to misappropriation of trade secrets— such as making misrepresentations to obtain the plaintiffs product and technical assistance from its employees. The court concluded that a trial was necessary to determine "whether the only real harm was the alleged misappropriation of trade secrets," in which case, the court recognized, the tort claims would be preempted. Id. at 205.
      In Lucini Italia Co. v. Grappolini, 231 F. Supp. 2d 764, 770 (N.D. Ill. 2002), as we have noted above in paragraph 33, the court declined to dismiss the claim for breach of fiduciary duty because there were factual allegations independent of the misappropriation of trade secret claim — that the plaintiffs consultant used his position to contract on his own behalf for his own interests. However, after a trial to the court, the court again took up the preemption issue, noting that now the factual record was more fully developed. Lucini Italia Co. v. Grappolini, No. 01 C 6405, 2003 WL 1989605, at *22 (N.D. Ill. Apr. 28, 2003). The court concluded that the breach of fiduciary duty claim, fraud, and promissory estoppel claims were preempted by the Illinois trade secret statute because they were "inextricably linked to the trade secret claim." Id.

       Wisconsin Stat. § 943.70(2)(a) provides in full:
      (2) Offenses against computer data and programs.
      (a) Whoever willfully, knowingly and without authorization does any of the following may be penalized as provided in pars, (b) and (c):
      1. Modifies data, computer programs or supporting documentation.
      2. Destroys data, computer programs or supporting documentation.
      3. Accesses computer programs or supporting documentation.
      4. Takes possession of data, computer programs or supporting documentation.
      5. Copies data, computer programs or supporting documentation.

        6. Discloses restricted access codes or other restricted access information to unauthorized persons.

       This assumes, of course, that Burbank timely presented to the circuit court its argument that allegations other than those in paragraphs 14 and 15 stated a claim for violations of Wis. Stat. § 943.70(2)(a). From our review of the record, it appears that Burbank argued violations of § 943.70(2)(a)4 and 5 in its main brief on summary judgment, and subds. 3, 4, 5, and 6 in its reply brief. Apparently the circuit court did not rule that Burbank's argument based on subd. 6 was untimely, and we therefore address it.


text:
    Daniel J. Bender and Carol J. Bender, Petitioners-Appellants, v. State of Wisconsin, Department of Revenue, Respondent-Respondent.
    Court of Appeals

      No. 04-0766.

      Submitted on briefs October 14, 2004.

    Decided January 20, 2005.

    2005 WI App 31
    (Also reported in 693 N.W.2d 311.)

      On behalf of the petitioners-appeUants, the cause was submitted on the briefs of Nathaniel J. Krautkramer, Wausau.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Mary E. Burke, asst, attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Vergeront, Lundsten and Higginbotham, JJ.
   VERGERONT, J.

¶ 1. This appeal concerns the construction and application of Wis. Stat. § 78.12(3) and related sections that govern motor vehicle fuel taxes. The Department of Revenue assessed Daniel Bender and Carol Bender $64,930.11 for unpaid motor vehicle fuel taxes that were incurred by L.L. Bender Oil Corporation, and the Tax Appeals Commission affirmed DOR's decision. The Benders appeal the circuit court's order affirming the commission's decision. They contend the commission erred in construing § 78.12(3) to impose liability on Bender Oil because it was not a licensed supplier and Phillips 66 Company, the licensed supplier, had paid the tax.

¶ 2. We conclude the more reasonable construction of Wis. Stat. § 78.12(3) when read in conjunction with related sections is as follows: a purchaser of motor vehicle fuel from a licensed supplier is liable to DOR for the tax when the purchaser does not pay the tax to the supplier as required by Wis. Stat. § 78.01(1) but does collect the tax from the customers to whom the purchaser sells the fuel and when DOR gives a credit to the supplier for the tax it paid as authorized by § 78.01(2s). The commission correctly applied this construction of § 78.12(3) to Bender Oil. Accordingly, we affirm the circuit court's order.

BACKGROUND

¶ 3. The relevant facts are not disputed. In July 1998, the period for which the taxes were assessed, David Bender was president, treasurer, and majority stockholder of Bender Oil and Carol Bender was the vice-president. During that month, Bender Oil received at least fifteen shipments of motor vehicle fuel from Phillips 66 and sold the fuel to its customers. Bender Oil did not pay Phillips 66 for the fuel. On each sale to its customers, Bender Oil collected the fuel tax, but did not remit any taxes to DOR for sales made in July 1998.

¶ 4. Bender Oil deposited the payments from its customers into its business checking accounts, for which the Benders each had check-signing authority. In July 1998 and August 1998, substantial deposits far exceeding $20,000 were made into each of the three Bender Oil business checking accounts, and these funds were available to pay creditors and were used to pay creditors.

¶ 5. Phillips 66 paid the taxes for July 1998 to DOR. After Phillips 66 provided DOR with substantiation that it was unable to recover the fuel tax from Bender Oil, DOR issued a Notice of Entitlement to Tax Credit to Phillips 66 for the tax Bender Oil failed to pay to Phillips 66. DOR also issued a personal liability assessment for the fuel tax against each of the Benders for $64,930.11 as officers, employees, fiduciaries, or agents who were responsible for paying the tax, interest, penalties, and other charges incurred but not paid by Bender Oil. The Benders both petitioned for rede-termination by DOR and, when DOR denied their petitions, they sought review by the commission.

¶ 6. Before the commission, the Benders did not dispute the amount of the tax but did dispute their liability for the tax. In their view of the statutes, only a licensed supplier was obligated to pay the tax. In support of their position they submitted their affidavits averring that Bender Oil was not a licensee or supplier.

¶ 7. The commission rejected the Benders' argument. It relied on Wis. Stat. § 78.01(1), under which the tax is imposed on each sale at the time of sale. The commission reasoned that Bender Oil owed the tax because it had not paid the tax to Phillips 66 but had collected the tax from the customers to whom it sold the fuel. The commission concluded that Wis. Stat. § 78.12(3) applied in this situation and made Bender Oil liable to DOR for the tax. Section 78.12(3) provides:

(3) RepoRts of OTHERS. Any person, including a terminal operator, who is not a licensee and who either uses any motor vehicle fuel in this state or who has possession of any motor vehicle fuel (other than that contained in the ordinary fuel tank attached to a motor vehicle) upon which the motor vehicle fuel tax has not been paid or the liability therefor has not been incurred by any licensee in this state shall file a report and pay the tax on that motor vehicle fuel and shall be subject to this subchapter in the same manner as is provided for licensees.

The commission also concluded that the undisputed facts established the requisite elements for the Benders' personal liability for the tax under Wis. Stat. § 78.70(6).

¶ 8. The circuit court affirmed the commission's decision, concluding that the commission's decision was entitled to due weight and that its construction of Wis. Stat. § 78.12(3) was, in any event, the only reasonable one.

DISCUSSION

¶ 9. On appeal, the Benders press the argument rejected by the commission — that Bender Oil owed no tax to DOR because it was not a licensed supplier. Their argument is as follows. Wisconsin Stat. § 78.01(1) imposes a tax on all "motor vehicle fuel received by a supplier for sale in this state," and all licensed suppliers are required to pay this tax to DOR. Wis. Stat. § 78.12(5). Because Phillips 66, not Bender Oil, was the licensed supplier, Phillips 66, not Bender Oil, owed the tax to DOR. Phillips 66 paid that tax. Section 78.12(3) applies only when "the ... tax has not been paid or the liability therefor has not been incurred by any licensee in this state," and that subsection therefore does not apply in this case. The Benders acknowledge that Phillips 66 received a credit for the tax but, they assert, that does not make § 78.12(3) applicable because at the time Bender Oil possessed the fuel, the tax had been paid by Phillips 66. Then, by the time DOR gave Phillips 66 the credit, the Benders had received a discharge in a Chapter 7 bankruptcy.

¶ 10. We review the decision of the commission, not that of the circuit court. Kamps v. DOR, 2003 WI App 106, ¶ 10 n.4, 264 Wis. 2d 794, 663 N.W.2d 306. Construction of a statute and its application to a given set of facts present a question of law, which we review de novo. Id., ¶ 11. If the language of a statute is plain, we apply that language to the facts at hand. Id. However, if a statute is ambiguous, although we are not bound by the agency's construction, we may in certain situations defer to an agency's construction of a statute. Id.

¶ 11. 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 one of 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. Id. We give a lesser amount of deference — due weight — when the agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute. Id.

¶ 12. Under the great weight standard, we uphold an agency's reasonable interpretation of the statute if it is not contrary to the clear meaning of the statute, even if we conclude another interpretation is more reasonable. Id,., ¶ 12. Under the due weight standard, we uphold the agency's reasonable interpretation if it comports with the purpose of the statute and we conclude there is not a more reasonable interpretation. Id. We give no deference to the agency, and review the issue de novo, when the issue before the agency is one of first impression or the agency's position has been so inconsistent as to provide no real guidance. Id.

¶ 13. We reject the Benders' assertion that the commission's decision is entitled to no deference. The commission is charged by the legislature with being the final authority on all questions of law involving taxes. Wis. Stat. § 73.01(4). See also Kamps, 264 Wis. 2d 794, ¶ 14. In construing the statutes governing motor vehicle fuel taxes, the commission has employed the experience gained over the years from discharging that duty. See Gerald K. Thomas v. DOR, Docket No. 94-V-222, Wis. Tax Rptr. [CCH] ¶ 400-147 (Aug. 21, 1995); Jeffrey P. Mach, Sr. v. DOR, Docket No. 95-V-1295, Wis. Tax Rptr. [CCH] ¶ 400-317 (Sept. 17,1997); Browning-Ferris Industries of Wisconsin, Inc. v. DOR, Docket No. 97-S-282, Wis. Tax Rptr. [CCH] ¶ 400-469 (Jan. 13, 2000). The commission's decision in this case is therefore entitled to at least due weight. We need not decide whether great weight deference is appropriate because we conclude that the commission's construction of Wis. Stat. § 78.12(3) and related statutes is more reasonable than the construction the Benders propose.

¶ 14. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation, but as part of a whole, in relation to the language of surrounding or closely related statutes, and reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48.

¶ 15. The Benders are correct that the tax is imposed on all motor vehicle fuel received by a licensed supplier for sale in this state. Wis. Stat. § 78.01(1). However, it is also true that under § 78.01(1) the licensed supplier is required to collect this tax from the purchaser of the fuel, in this case, Bender Oil, and Bender Oil is required to pay that tax to the supplier. Bender Oil, in turn, is obligated to collect the tax from the customers to whom it sells the fuel, adding the tax to the sales price, "so that the tax is ultimately paid by the user of the motor vehicle fuel." Section 78.01. Thus, although Wis. Stat. § 78.12(5) obligates the licensed supplier to pay the tax to DOR, the clear intent of the statutory scheme is that the supplier will receive the amount paid to DOR from the entity that purchased the fuel from the supplier.

¶ 16. Wisconsin Stat. § 78.01(2s) addresses what happens when the licensed supplier is unable to collect the tax from the purchaser:

(2s) Liability PRECLUDED. A licensed supplier who is unable to recover the tax from a purchaser is not liable for the tax and, with proper documentation, may credit the amount of tax against a later remittance of taxes. A wholesaler distributor who is unable to recover the tax from another wholesaler distributor or from a retail dealer is not liable for the tax and, by supplying proper documentation, may apply to the department for a refund.

Section 78.01 (2s) plainly expresses the legislature's intent that the licensed supplier does not become liable for the tax when the purchaser does not pay the tax to the supplier as required by § 78.01(1). Because the licensed supplier under § 78.01 (2s), with proper documentation, receives’ a credit for the tax it has paid but has been unable to collect, the tax, in effect, remains unpaid unless another provision allows DOR to collect the tax from the purchaser who failed to pay the tax to the licensed supplier as required by § 78.01(1). According to the commission, Wis. Stat. § 78.12(3) is the provision that fills this gap, because Bender Oil was in possession of the fuel and the tax remains unpaid.

¶ 17. The Benders' argument that Wis. Stat. § 78.12(3) does not apply depends, at bottom, on the verb tenses. According to the Benders, because "uses" and "possesses" are in the present tense, while "has not been paid" and "the liability therefore has not been incurred" are in the present perfect tense, the taxes must be unpaid or the liability not incurred at the time the fuel is used or possessed. While this is a reasonable way to read this subsection in isolation, we conclude it is not more reasonable than the commission's construction when the subsection is considered in conjunction with Wis. Stat. §§ 78.01(1) and (2s).

¶ 18. Under Wis. Stat. § 78.01(2s), a licensed supplier that initially incurs liability, in the sense that it is obligated to pay DOR under Wis. Stat. § 78.12(5) at a prescribed time, is nonetheless "not liable for the tax" if a certain later event occurs — if it cannot recover the tax from the purchaser who is obligated to pay it. The legislature would not likely have intended that the licensed supplier's liability is precluded by this later event under § 78.01(2s), but that this later event is irrelevant to the licensed supplier's liability for purposes of § 78.12(3): the legislature would not likely have intended this because it means no one has to pay the tax to DOR.

¶ 19. Another weakness in the Benders' construction is that it ties the obligation to pay the tax under Wis. Stat. § 78.12(3) to the arbitrary and unpredictable relationship between the due date for the tax payment by the licensed supplier and the date of sale by purchaser to its customers. That is, § 78.12(5) does not require payment of the tax by the licensed supplier until the fifteenth of the month following the sale by the supplier to the purchaser. Thus, it may often happen that the tax is not paid by the licensed supplier before a purchaser such as Bender Oil has sold the fuel to customers. Bender Oil provides no rational explanation for why the timing of its sale of the fuel to its customers should affect its liability for the tax it has failed to pay to Phillips 66 as required by Wis. Stat. § 78.01(1), and we can discern none.

¶ 20. In arguing that its construction of Wis. Stat. §78.12(3) is the correct one, the Benders refer to Bender Oil's particular circumstances, pointing out that Bender Oil has already sold the fuel to its customers and its assets have been used to pay its creditors in the Chapter 7 bankruptcy it filed. However, we see nothing in § 78.12(3), or any other statute the Benders have brought to our attention, that would make this a relevant factor in construing § 78.12(3).

¶ 21. We conclude the more reasonable construction of Wis. Stat. § 78.12(3), when read in conjunction with Wis. Stat. §§ 78.01(1) and (2s), is as follows: a purchaser of motor vehicle fuel from a licensed supplier is liable to DOR for the tax when the purchaser does not pay the tax to the supplier as required by § 78.01(1) but does collect the tax from the customers to whom the purchaser sells the fuel and when DOR gives a credit to the supplier for the tax it paid as authorized by § 78.01(2s). We simply cannot agree with Bender Oil that the legislature intended in this situation that Phillips 66 receive a credit and no one pay the tax.

¶ 22. The Benders rely on the principle that an ambiguity in a tax statute is construed against the taxing government, citing Marina Fontana v. Fontana-on-Geneva Lake, 111 Wis. 2d 215, 225 n.8, 330 N.W.2d 211 (1983). We conclude that principle is not applicable here. Wisconsin Stat. § 78.01(1) unambiguously requires Bender Oil to pay the tax to Phillips 66 and to collect it from the customers. There is thus no room for argument that Bender Oil is not authorized to fail to pay the tax to Phillips 66 while keeping the tax it has collected from its customers. We agree with DOR that, in effect, the Benders are arguing that Bender Oil should be excused from its obligation to pay the tax. This is akin to an exemption from tax, for which courts generally require express language granting the exemption. See Ramrod, Inc. v. DOR, 64 Wis. 2d 499, 504, 219 N.W.2d 604 (1974). We are satisfied that the commission was not required to construe Wis. Stat. § 78.12(3) in Bender Oil's favor, and that its construction, when read in conjunction with related sections, is the more reasonable.

By the Court. — Order affirmed.

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

       Unless otherwise noted, these facts are taken from the statement of facts in the commission's decision.

       The commission did not make an express finding to this effect, but it is implicit in the fact, recited by the commission, that DOR issued a Notice of Entitlement to Tax Credit to Phillips 66; in addition, DOR stated in answers to the Benders' interrogatories that it did receive the tax from Phillips 66.

       Wisconsin Stat. § 78.01(1) provides:
      (1) Imposition of tax and by whom paid. An excise tax at the rate determined under ss. 78.015 and 78.017 is imposed on all motor vehicle fuel received by a supplier for sale in this state, for sale for export to this state or for export to this state except as otherwise provided in this chapter. The motor vehicle fuel tax is to be computed and paid as provided in this chapter. Except as otherwise provided in this chapter, a person who receives motor vehicle fuel under s. 78.07 shall collect from the purchaser of the motor vehicle fuel that is received, and the purchaser shall pay to the person who receives the motor vehicle fuel under s. 78.07, the tax imposed by this section on each sale of motor vehicle fuel at the time of the sale, irrespective of whether the sale is for cash or on credit. In each subsequent sale or distribution of motor vehicle fuel on which the tax has been collected as provided in this subsection, the tax collected shall be added to the selling price so that the tax is paid ultimately by the user of the motor vehicle fuel.

       Wisconsin Stat. § 78.70(6) provides:
      (6) Personal liability. Any officer, employee, fiduciary or agent who is responsible for paying taxes, interest, penalties or other charges under this chapter incurred by another person, as defined in s. 77.51 (10), is personally liable for those taxes, interest, penalties or other charges. Sections 71.88 (l)(a) and (2)(a), 71.89 and 71.90, as they apply to appeals of income or franchise tax assessments, apply to appeals of assessments under this subsection.

       The Benders' challenge on this appeal is limited to the commission's decision that Bender Oil owed the tax; they do not assert that, if Bender Oil did owe the tax, they have no personal liability for the tax.

       The Benders do not cite to any factual submissions in the record that show Phillips 66 is licensed to receive motor vehicle fuel; their affidavits aver only that it is a supplier of motor vehicle fuel. However, DOR does not dispute that Phillips 66 is a licensed supplier, and this is implicit in the commission's decision. We therefore accept this assertion as fact for purposes of this decision.

       These facts were averred in the Benders' affidavits filed with the commission.