text:
    Christina Malik, Plaintiff-Appellant, v. American Family Mutual Insurance Company, Matthew J. Herman and Patricia Herman, Defendants-Respondents.
    Court of Appeals

      No. 00-1129.

      Submitted on briefs January 5, 2001.

    Decided March 22, 2001.

    2001 WI App 82
    (Also reported in 625 N.W.2d 640.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of M. Nicol Padway, Esq. of Padway & Padway, Ltd., Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of Made E. Buell and Agatha K. Kresa of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee.
    On behalf of the defendant-respondent, American Family Mut. Ins. Co., the cause was submitted on the brief of Michael J. Wirth of Peterson, Johnson & Murray of Milwaukee.

      Before Dykman, P.J., Vergeront and Roggensack, JJ.
   VERGERONT, J.

¶1. Christina Malik was bitten by a dog, owned by Matthew and Patricia Herman, which she was caring for while the Hermans were on vacation. She appeals the summary judgment dis- . missing American Family Insurance Company because, the trial court concluded, there was no coverage under the Hermans' homeowners insurance policy. Malik also appeals the summary judgment dismissing the claim against the Hermans under WlS. STAT. § 174.02(1) (1999-2000), the dog bite statute, and the court's dismissal of her claim for double damages under § 174.02(l)(b) for the Hermans' alleged common law negligence.

¶ 2. We conclude the homeowners policy does not provide coverage for Malik's claims against the Hermans because at the time she was injured she was an insured under the policy, and the intra-insured exclusion therefore applied. We also conclude Malik was a keeper of a dog and therefore an owner under WlS. Stat. §§ 174.02(1) and 174.001(5), and accordingly she may not recover under the statute, notwithstanding that she has alleged the Hermans are negligent. Finally, we conclude that because Malik may not recover under the statute, she may not recover double damages under § 174.02(l)(b) on her common law negligence claim. We therefore affirm.

BACKGROUND

¶ 3. For purposes of this appeal, the facts are not in dispute. The Hermans and Malik were friends. The Hermans asked Malik to care for their dog, Corky, a springer spaniel, while they were on a one-week vacation, and Malik agreed. Malik did so as a favor and did not receive any compensation. Malik brought the dog to her house. Corky had been at Malik's house three nights when Corky bit Malik on her left hand. Humane Society employees removed Corky from Malik's home after the incident.

¶ 4. At the time of the incident, the Hermans had in effect a homeowners insurance policy issued by American Family. Malik's complaint alleged the Hermans were negligent in various ways, that under Wis. Stat. § 174.02 they were strictly liable to her for double her damages, and that their homeowners policy covered their liability.

¶ 5. American Family and the Hermans both moved for summary judgment. American Family contended there was no coverage under the policy because Malik was an insured under the policy and the policy excluded coverage for bodily injury to an insured. The Hermans contended they were not liable to Malik under WlS. STAT. § 174.02 because at the time of the incident she was a keeper of the dog within the meaning of that statute. They also contended they were not negligent because they were not aware, nor in the exercise of reasonable care should they have been aware, that Corky possessed vicious or mischievous propensities to injure others.

¶ 6. The trial court agreed with American Family that its policy did not provide coverage for any liability the Hermans might have to Malik, and it dismissed the insurer. The court denied the Hermans' motion with respect to the negligence claim, allowing Malik to pursue that claim; but the court granted their motion with respect to the statutory claim and dismissed it. Relying on Armstrong v. Milwaukee Mut. Ins. Co., 202 Wis. 2d 258, 549 N.W.2d 723 (1996), the court concluded that because Malik was a keeper and therefore an owner within the meaning of the statute, Malik could not maintain an action against the Hermans. The court also ruled that double damages under WlS. STAT. § 174.02(l)(b) were available only for a violation of the statute and not for common law negligence.

¶ 7. On appeal, Malik challenges the dismissal of American Family, the dismissal of the statutory claim against the Hermans, and the court's ruling that double damages were not available under WlS. STAT. § 174.02(l)(b) for her common law negligence claim.

DISCUSSION

¶ 8. We review a trial court's decision to grant summary judgment de novo, applying the same methodology as the trial court. Fifer v. Dix, 2000 WI App 66, ¶ 5, 234 Wis. 2d 117, 608 N.W.2d 740. Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

Homeowners Insurance Coverage

¶ 9. The Hermans' homeowners insurance policy provides:

5. Insured
a. Insured means you and, if residents of your household:
(1) your relatives; and
(2) any other person under the age of 21 in your care or in the care of your resident relatives.
b. Under Personal Liability and Medical Expense Coverages, insured also means:
(1) any person or organization legally responsible for a watercraft or animal owned by any person included in paragraph a. to which Section II Coverages apply. This does not include a person or organization using or having custody of the watercraft or animal in the course of any business or without your specific permission.
LIABILITY COVERAGES — SECTION II
COVERAGE D — PERSONAL LIABILITY COVERAGE. We will pay, up to our limit, compensatory damages for which any insured is legally liable because of bodily injury or property damage caused by an occurrence ["an accident, including exposure to conditions, which results during the policy period result in bodily injury or property damage"] covered by this policy.
COVERAGE E — MEDICAL EXPENSE COVERAGE. We will pay the medical expenses which are incurred or medically ascertained within three years from the date of an accident causing bodily injury covered by this policy. This coverage applies only:
2. to a person away from the insured premises if the bodily injury:
d. is caused by an animal owned by or in the care of any insured;
EXCLUSIONS — SECTION II
11. Intra-insured Suits. We will not cover bodily injury to any insured.

¶ 10. The interpretation of an insurance contract is a question of law, which we review de novo. Danbeck v. American Family Mut. Ins. Co., 2000 WI App 26, ¶ 5, 232 Wis. 2d 417, 605 N.W.2d 925, review granted, 234 Wis. 2d 175, 612 N.W.2d 732 (Wis. Apr. 28, 2000) (No. 99-1142). We construe the words in an insurance contract as a reasonable person in the position of an insured would understand them. Id. at ¶ 6. A word or phrase in an insurance contract is ambiguous if it is susceptible to more than one reasonable construction, and whatever ambiguity exists is resolved against the insurer as the drafter. Id. However, when the terms of a policy are plain on their face, we may not rewrite them. Id.

¶ 11. Malik contends the trial court erred in concluding she was an "insured" under the plain language of the policy and therefore was excluded under the intra-insured exclusion. Malik's position is that there is ambiguity in the policy language, so it must be construed against the insurer; if it is not so construed, she asserts, the intra-insured exclusion results in illusory coverage, which is against public policy.

¶ 12. According to Malik, a reasonable insured would understand the Hermans are insureds under 5(a) of the insurance policy and that 5(b)(1) expands the definition of "insured" so that if a person who is legally responsible for the Hermans' dog becomes liable to a third person, the person responsible for the dog, as well as the Hermans, is covered under the policy. A reasonable insured would not expect, Malik continues, that the expanded definition of "insured" in 5(b)(1) reduces the personal liability and medical expense coverage available for the Hermans' liability for injury caused by the dog they own.

¶ 13. The problem with Malik's reading of the insurance policy is that it does not take into account the intra-insured exclusion. That exclusion uses the term "insured," which is in bold type, indicating it has the meaning defined in the policy, and, Malik does not contend she is not an insured under paragraph (b)(1) of that definition.

¶ 14. Instead of focusing on the language of the intra-insured exclusion, Malik focuses on the case law that has described the purpose of exclusions for bodily injury to an insured, when "insured" is defined to include certain household residents. In Shannon v. Shannon, 150 Wis. 2d 434, 456, 442 N.W.2d 25 (1989), the court held that exclusion was not against public policy because it served the legitimate purpose of protecting insurers from situations where the insured, because of close family ties to the injured party, might not be cooperative with the insurance company's administration and defense of the claim. See also Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 149, 539 N.W.2d 883 (1995). Malik contrasts the situation in this case because she is not a member of the Hermans' family or resident of their household and, therefore, she contends, the rationale that was the basis for the exclusion considered in Shannon and Whirlpool is not furthered by applying the exclusion to her.

¶ 15. In articulating the purpose of the exclusions in Shannon and Whirlpool, the court did not suggest it would be against public policy to have an exclusion that was broader in scope than suits by family members or residents of the insured's household. Therefore, those cases do not shed any light on the proper construction of the intra-insured exclusion in this case.

¶ 16. Applying the rules of construction of insurance contracts, we conclude that at the time of the incident Malik was an "insured" under the plain lanr guage of the policy definition for purposes of personal liability and medical expenses coverage because she was "legally responsible . . . for a[n] animal owned by [the Hermans]" and she had custody of the animal "not in the course of any business" and "with [the Hermans'] specific permission." Under the plain language of the intra-insured exclusion, there is no coverage under this policy for her suit against the Hermans to recover for bodily injury.

¶ 17. We do not agree with Malik that if we construe the intra-insured exclusion to include persons who are not members of the Hermans' family or residents of their household, coverage is "illusory" and therefore against public policy. Malik relies on this argument in Meyer v. Classified Ins. Co., 192 Wis. 2d 463, 531 N.W.2d 416 (Ct. App. 1995), and Ermenc v. American Family Mut. Ins. Co., 221 Wis. 2d 478, 585 N.W.2d 679 (Ct. App. 1998), but we conclude neither case supports her position.

¶ 18. In Meyer, we held that even though the definition of an underinsured motor (UIM) vehicle in a UIM policy was "not technically ambiguous," given that definition the insured could never recover under the policy. Meyer, 192 Wis. 2d at 467-68. Coverage was therefore illusory, we concluded, and violated public policy, which disfavors illusory coverage. Id. at 468-69. Essential to our holding in Meyer was the fact that the insured who had paid a premium for UIM coverage, would never receive any coverage. Id. at 468. That is not true in this case. The unambiguous policy language excludes liability coverage for the Hermans in particular situations, but does not even approach a situation where the Hermans are provided no liability coverage in exchange for the premium they pay.

¶ 19. In Ermenc, we rejected the insurer's proposed interpretation of a pre-existing condition exclusion in a health insurance policy, concluding it was unreasonable because it would mean any prior symptom not inconsistent with the ultimate diagnosis would provide a basis for denial of coverage. Ermenc, 221 Wis. 2d at 486. This expansive definition of "preexisting condition," we held, would make denial of coverage "so easy as to make the insurance contract meaningless"; that result, we stated, relying on Meyer, was one we should avoid. Id. In contrast, in this case, applying the plain language of the definition of "insured" together with the intra-insured exclusion does not result in an unreasonable interpretation or make the insurance contract meaningless. Rather, the contract simply does not provide liability coverage for the Hermans in certain clearly defined situations, and this suit by Malik is one of those.

¶ 20. Based on the undisputed facts, Malik was legally responsible for an animal owned by the Hermans at the time she was injured, and the animal was in her custody not in the course of business and with the Hermans' specific permission. She was therefore an insured under the definition in 5(b)(1) for purposes of personal liability and medical payment expenses. Accordingly, under the plain terms of the intra-insured exclusion, the policy does not provide coverage to the Hermans for any liability they may have to Malik for those injuries.

Strict Liability Under WlS. STAT. § 174.02

¶ 21. Malik contends the trial court erred in interpreting WlS. STAT. § 174.02 to exclude a claim by the keeper of a dog against the legal owner of the dog, when the owner is, or is alleged to be, negligent. According to Malik, Armstrong permits a claim in this circumstance, and the trial court erred in reading Armstrong to preclude the claim.

¶ 22. Our review of the trial court's construction of the statute is de novo. Armstrong, 202 Wis. 2d at 264. The goal of statutory interpretation is to ascertain the intent of the legislature, and to discern this intent we look first to the plain language of the statute. See id. at 268. If the plain language of the statute is clear, we look no further and simply apply the statute to the facts and circumstances before us. See id.

¶ 23. Wisconsin Stat. § 174.02(l)(a) provides that "the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property." This section has been interpreted to impose strict liability on a dog owner, subject only to the defense of comparative negligence. Fifer, 2000 WI App 66 at ¶ 7." 'Owner' includes any person who owns, harbors or keeps a dog." WlS. STAT. § 174.001(5). In Armstrong, the court held that a keeper, and therefore an owner under the statute, need not be the legal owner of the dog, but must exercise some measure of custody, care, or control over the dog. Armstrong, 202 Wis. 2d at 266-67.

¶ 24. Malik does not contend she was not a keeper and, therefore, an owner under the statute at the time the Hermans' dog bit her. Rather, she relies on this statement in Armstrong: "We hold that when the legal owners of a dog are not negligent and are not exercising control over their dog, a person acting in the capacity of the dog's keeper cannot collect damages under WlS. STAT. § 174.02." Armstrong, 202 Wis. 2d at 268. Malik reads this statement to suggest that when the keeper proves the legal owner is negligent, the keeper may collect damages under the statute. However, when we read this statement in context, we conclude that the reference to the legal owners as "non-negligent" is a description of the facts in that case rather than a necessary condition for precluding recovery by a keeper who is not the legal owner.

¶ 25. The above-quoted sentence is followed by the court's reasoning:

We hold that when the legal owners of a dog are not negligent and are not exercising control over their dog, a person acting in the capacity as the dog's keeper cannot collect damages under WlS. STAT. § 174.02. Armstrong argues that whether or not she is a keeper is irrelevant to this case. Under the argument advanced by Armstrong, a keeper would be liable under WlS. Stat. § 174.02 only when a third party non-owner was injured. However, a legal owner would be liable to all injured parties, including other statutory owners such as a keeper.
We reject this position. There is no evidence that the legislature intended to treat keepers or harborers differently than legal owners. We conclude that the purpose of the statute is to protect those people who are not in a position to control the dog, and not to protect those persons who are statutorily defined as owners. An owner injured while in control of the dog may not use the statute to hold another owner liable.

Armstrong, 202 Wis. 2d at 268.

¶ 26. Neither the argument made by Armstrong — that her status as keeper was irrelevant — nor the court's reasons for rejecting it depends upon the non-negligence of the legal owner. The court's rationale — that the legislature's purpose is to protect those people who are not in a position to control the dog, not to protect those persons who are statutorily defined as owners — applies whether or not the legal owner is negligent. In addition, footnote 8 explains what happens when the legal owner is negligent: the keeper has a claim for common law negligence against the owner. We agree with the trial court that the reasoning of Armstrong compels the conclusion that Malik, as a keeper, may not recover from the Hermans under the statute.

¶ 27. We do not agree with Malik that this court's application of Armstrong in two subsequent cases — Fifer and Fire Ins. Exch. v. Cincinnati Ins. Co., 2000 WI App 82, 234 Wis. 2d 314, 610 N.W.2d 98 — supports her reading oí Armstrong. In Fifer, we reviewed a trial court decision that the legal owner of a dog who was not exercising control over the dog when it injured a third person could not be liable under the statute. Fifer, 2000 WI App 66 at ¶ 13. We reversed, rejecting the legal owner's argument that this result flowed from Armstrong and stating: "... Armstrong created only a very narrow exception to the strict liability provision of § 174.02(1), an exception that precludes only the imposition of liability under the statute on one 'owner' of a dog for injuries incurred by another 'owner' of the dog." Fifer, 2000 WI App 66 at ¶ 10. Our statement that the exception to liability in Armstrong is "narrow" refers to Armstrong's focus on injury to an owner rather than on injury to any person. Our statement does not indicate a recognition that the Armstrong. exception applies only if the legal owner is non-negligent; indeed our summary of Armstrong's exception does not contain such a limitation.

¶ 28. In Fire Ins. Exch., we reviewed a trial court's dismissal on summary judgment of claims by a twelve-year-old boy who was volunteering at a county humane society when a dog bit him. The trial court decided the boy was a keeper and, therefore, under Armstrong could not recover under the statute. The trial court also dismissed his claim of negligence. We concluded that, if the humane society had violated the child labor laws, then as a matter of law the boy would not be a keeper under Wis. STAT. § 174.02; but, even if the humane society had not violated the child labor laws, the record was insufficient for us to rule as a matter of law that the boy was a keeper. Fire Ins. Exch., 2000 WI App 82 at ¶¶ 14-15. For this and other reasons, we reversed the grant of summary judgment and remanded. Id. at ¶ 30.

¶ 29. In Fire Ins. Exch. we quoted the statement from Armstrong on which Malik relies, id., at ¶ 13, but nothing in our decision indicates that if the boy were determined to be a keeper, he could recover under the statute because the complaint alleged that both the humane society and the dog's legal owners were negligent. Indeed, we specifically stated:

"[Since the humane society and the legal owners are 'owners' under the statute], both may be strictly liable under the statute, so long as [the boy] is not also found to be a keeper. Both may avoid strict liability, but not liability based on negligence, if the circuit court determines that [the boy] is a keeper because Armstrong holds that a keeper may not sue another owner/keeper under WlS. STAT. § 174.02."

Fire Ins. Exch., 2000 WI App 82 at ¶ 18 (footnote added). Rather than supporting Malik's position, Fire Ins. Exch. shows we have interpreted Armstrong to preclude a keeper from asserting a claim under the. statute against the legal owner, even if the legal owner is negligent.

Application of WlS. STAT. § 174.02(l)(b) (Double Damages) to Common Law Negligence Claim

¶ 30. Malik contends the trial court erred in interpreting WlS. STAT. § 174.02(l)(b) to permit recovery of double damages only for a violation of the statute and not for common law negligence. She contends that sound policy, common sense, and the legislative history of the statute support recovery of double damages on a claim for common law negligence.

¶ 31. Malik's interpretation of WlS. STAT. § 174.02(1) is inconsistent with Armstrong. Armstrong held that an owner in control of the dog may not sue under the statute to hold another owner liable, although the owner in control may bring a claim for common law negligence. Armstrong, 202 Wis. 2d at 268. If an owner in control may not hold another owner liable under the statute, we do not see how that owner can recover damages under the statute, either the damages caused by an injury when the owner was not notified or did not know the dog previously caused injury, as provided for in § 174.02(l)(a), or double damages when the owner did have notice, as provided in § 174.02(l)(b). The trial court correctly ruled that, since Malik's claim under § 174.02 was dismissed, she could not recover double damages under § 174.02(l)(b) even if she prevailed on the remaining negligence claim.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 174.02 provides in part:
      Owner's liability for damage caused by dog; penalties; court order to kill a dog.
      (1) LIABILITY FOR INJURY, (a) Without notice. Subject to s. 895.045 and except as provided in s. 895.57(4), the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.
      (b) After notice. Subject to s. 895.045 and except as provided in s. 895.57(4), the owner of a dog is liable for 2 times the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.
      (2) PENALTIES IMPOSED ON OWNER OF DOG CAUSING DAMAGE, (a) Without notice. The owner of a dog shall forfeit not less than $50 nor more than $500 if the dog injures or causes injury to a person, domestic animal, property, deer, game birds or the nests or eggs of game birds.
      (b) After notice. The owner of a dog shall forfeit not less than $200 nor more than $1,000 if the dog injures or causes injury to a person, domestic animal, property, deer, game birds or the nests or eggs of game birds, if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal, property, deer, game birds or the nests or eggs of game birds.
      (c) Penalties in addition to liability for damages. The penalties in this subsection are in addition to any other liability imposed on the owner of a dog.

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

       At the beginning of the "Definition" section, the policy provides: "The following words in this policy have defined meanings. They will be printed in bold type." The term "insured" is one of the definitions in this section.

       More recently in Sukala v. Heritage Mut. Ins. Co, 2000 WI App 266, ¶¶ 15-18, 240 Wis. 2d 65, 622 N.W.2d 457, we considered the effect of the supreme court's decision in Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557, on the line of cases, including Meyer v. Classified Ins., 192 Wis. 2d 463, 531 N.W.2d 416 (Ct. App. 1995), which hold that certain UIM policy provisions rendered coverage illusory and against public policy. We held in Sukala that under Dowhower a reducing clause in a UIM policy that complied with the recently enacted WlS. Stat. § 632.32(5)6) did not render the policy illusory; we further held that once we concluded the UIM provision was not ambiguous, our inquiry ended. Sukala, 2000 WT App 266 at ¶ 20. We need not decide what, if anything, remains of our holding in Meyer after Dowhower and Sukala,
        because even if Meyer were still good law, for the reason we explain above, it does not support an argument that there is illusory coverage under the Hermans' policy.

       Meyer relied upon Hoglund v. Secura Ins., 176 Wis. 2d 265, 500 N.W.2d 354 (Ct. App. 1993), for this determination. We have since questioned whether the factual underpinning for Hoglund is correct. Taylor v. Greatway Ins. Co., 2000 WI App 64, ¶¶ 30-35, 233 Wis. 2d 703, 608 N.W.2d 722, review granted, 237 Wis. 2d 251, 616 N.W.2d 114 (Wis. May 23, 2000) (No. 99-1329).

       Of course, when there is negligence, there is nothing in this opinion which should be interpreted to prevent a keeper from pursuing a common-law negligence claim against another owner.

       We emphasize that even if the circuit court determines that [the boy] is a keeper, it was still error for the circuit court to dismiss this case. Armstrong demonstrates that although a keeper will be barred from bringing a claim of strict liability against another owner under the statute, that keeper will not be barred from bringing a claim of negligence against another owner or keeper.


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    Tammy J. Kaufman and Gary L. Kaufman, Plaintiffs-Respondents, Lumbermens Mutual Casualty Company and United Health Care of Utah, Inc., Involuntary-Plaintiffs, v. Donald E. Postle and Tower Insurance Company, Inc., Defendants-Appellants.
    Court of Appeals

      No. 00-1326.

      Submitted on briefs November 7, 2000.

    Decided March 22, 2001.

    2001 WI App 86
    (Also reported in 626 N.W.2d 10.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Daniel A. Enright of Wilcox, Wilcox, Enright, Hallstein, McMahon & Adler, LLC of Eau Claire.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Thomas E. Lister of Thomas E. Lister, S.C. of Black River Falls.
    Before Vergeront, Roggensack, and Deininger, JJ.
   ROGGENSACK, J.

¶1.

Donald E. Postle appeals a circuit court judgment that held him liable for damages caused by his negligence. He argues that the circuit court erroneously instructed the jury that a driver may not pass on the right using any part of a road's shoulder. Because we conclude that the circuit court's instruction correctly stated the law, we affirm the judgment.

BACKGROUND

¶ 2. This appeal arises from an automobile accident that occurred in rural Jackson County where Town Hall Road crosses State Highway 10. At this intersection, Highway 10 is a two-lane road with paved shoulders. The intersection does not have a stop sign or traffic light on Highway 10. Tammy Kaufman was traveling west on State Highway 10, and, as she was turning right onto Town Hall Road, her car was struck by a van driven by Postle, who was driving on the right-hand shoulder in an attempt to pass her.

¶ 3. Kaufman sued Postle, resulting in a trial to determine whether he had been negligent and whether he was a cause of the accident. Over Postle's objection, the circuit court instructed the jury that a driver-may not pass another vehicle on the right using any part of the road's shoulder. The jury determined that Postle was ninety percent negligent and Kaufman ten percent negligent. The circuit court entered judgment for Kaufman, and Postle appeals.

DISCUSSION

Standard of Review.

¶ 4. Interpretation of a statute is a question of law, which we review de novo. Ansani v. Cascade Mountain, Inc., 223 Wis. 2d 39, 45, 588 N.W.2d 321, 324 (Ct. App. 1998). However, the instruction of a jury is a discretionary decision of the circuit court. Id. "The trial court has broad discretion when instructing the jury." Finley v. Culligan, 201 Wis. 2d 611, 620, 548 N.W.2d 854, 858 (Ct. App. 1996). No grounds for reversal exist if the overall meaning communicated by the instructions was a correct statement of the law. Id.

Jury Instructions.

¶ 5. Here, Postle claims error based on the following instruction which the circuit court gave to the jury:

A safety statute provides: The operator of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety and only if the operator can do so without driving off the pavement or the main traveled portion of the roadway. A driver may not pass traffic on the right using any part of the road's shoulder. To do so is a violation of the Rules of the Road section permitting motor vehicle operators to pass on the right only when such can be done without driving off the main traveled portion of the roadway.

Postle argues that the court erred in stating that a driver may not pass traffic on the right using any part of the road's shoulder. He contends that WlS. Stat. § 346.08 (1999-2000) allows a driver to use the shoulder of a road to pass another vehicle on the right if the vehicle that is being passed is turning left and the shoulder is paved.

¶ 6. Formulating an appropriate jury instruction required the circuit court to interpret WlS. Stat. § 346.08, which describes how a driver may lawfully pass on the right. The parties agree that § 346.08 is central to their dispute, but each contends it has a different meaning. When we review the application of a statute whose meaning is in dispute, our efforts are directed at determining the legislative intent that underlies the statute. Ansani, 223 Wis. 2d at 48, 588 N.W.2d at 325.

¶ 7. We first note that WlS. STAT. § 346.08 is a safety statute, designed to lessen the likelihood that accidents will occur when one vehicle is passing another on the right. See Betchkal v. Willis, 127 Wis. 2d 177, 184, 378 N.W.2d 684, 687 (1985) (citing Walker v. Bignell, 100 Wis. 2d 256, 268, 301 N.W.2d 447, 454 (1981)); WlS. Stat. § 346.17. Therefore, we interpret it in the manner that will best fulfill that legislative purpose.

¶ 8. However, to review WlS. STAT. § 346.08, we must also examine several other statutory provisions that, assist us in understanding the terms used in § 346.08. For example, "highway" is a term defined by statute as: "the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel." Wisconsin Stat. § 340.01(22). A "roadway" is defined more narrowly than a highway. It is the "portion of a highway . . . ordinarily used for vehicular travel, excluding the berm or shoulder." Section 340.01(54). Additionally, a motorist must operate his vehicle on the right side of the roadway. WISCONSIN STAT. § 346.05(1). However, a bicycle may be operated off of the roadway because it is permissible to do so on the shoulder of a highway, unless specifically prohibited. Section 346.05(lm). Therefore, by statutory definition, "it is apparent that under any circumstances" the shoulder is excluded from the term "roadway" in § 346.08. Reyes v. Lawry, 33 Wis. 2d 112, 119, 146 N.W.2d 510, 513-14 (1966).

¶ 9. With the legislative purpose and the statutory definitions in mind, we examine Wis. Stat. § 346.08, which describes how passing on the right may be done lawfully. It provides in relevant part:

When overtaking and passing on the right permitted. The operator of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety and only if the operator can do so without driving off the pavement or main-traveled portion of the roadway ...
(1) When the vehicle overtaken is making or about to make a left turn ....

¶ 10. We focus our attention, as have the parties, on the prepositional phrase "of the roadway." If it modifies both "pavement" and "main-traveled portion," then the shoulder may not be used for passing on the right because the shoulder is not part of a "roadway," according to the statutory definition and the supreme court's interpretation. WISCONSIN Stat. § 340.01(54); Reyes, 33 Wis. 2d at 119, 146 N.W.2d at 513.

¶ 11. The legislature requires motorists to operate their vehicles on the right side of the roadway. WISCONSIN Stat. § 346.05(1). Additionally, when the legislature chose to authorize travel on the shoulder of a highway, it specifically said that it was permitted. Section 346.05(lm). Furthermore, ch. 346 applies to any roadway; therefore, the legislature intended WlS. Stat. § 346.08 to address when a driver may pass on the right on both paved and unpaved roadways. We therefore conclude that the legislature used the terms "pavement" and "main-traveled portion" to describe when passing on the right may occur on both types of roadways. If the legislature had meant to permit passing on a paved shoulder as Postle contends, it would have said that travel on the shoulder was permissible as it did in § 346.05(lm) for bicycle operation. And finally, because § 346.08 is a safety statute, interpreting it to permit using the shoulder to pass on the right would increase the risk of accidents of the type that occurred here, a result contrary to the purpose of the legislature. Therefore, we conclude that the phrase "of the roadway" modifies both "pavement" and "main-traveled portion" when describing where a driver may lawfully pass on the right. Because a shoulder of a highway is never part of a roadway, Reyes, 33 Wis. 2d at 119, 146 N.W.2d at 513, we conclude that the circuit court was correct in instructing the jury that a driver may not pass on the right using any part of the shoulder.

¶ 12. Postle also asks us to defer to a June 17, 1999 memorandum from an assistant general counsel of the Department of Transportation (DOT) to a staff member of DOT's Traffic Section that interprets WlS. STAT. § 346.08. However, these materials, which Postle uses to construct an additional argument for statutory interpretation, were not presented to the circuit court at the jury instruction conference. Therefore, we decline to consider them. County of Columbia v. Bylewski, 94 Wis. 2d 153, 171, 288 N.W.2d 129, 138-39 (1980). Accordingly, we affirm the judgment of the circuit court.

CONCLUSION

¶ 13. Because we conclude that the circuit court's instruction correctly stated the law, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       The legislature has denominated ch. 346 as the "Rules of the Road."

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

       Postle testified at trial that he believed Kaufman initially had on her left-turn signal, and that she switched it to the right-turn signal when it was too late for him to stop his attempted pass on the right.


author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Derrick Benton, Defendant-Appellant.

    Court of Appeals

      No. 00-1096-CR.

      Submitted on briefs March 6, 2001.

    Decided March 27, 2001.

    2001 WI App 81
    (Also reported in 625 N.W.2d 923.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James E. Kachelski of Kachelski, Atta & Straub, S.C. of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Curley, JJ.

      Petition to review denied.

   FINE, J.

¶ 1.

Derrick Benton appeals from a judgment entered on a jury verdict convicting him of first-degree intentional homicide, see WlS. STAT. § 940.01(l)(a), and first-degree reckless injury by the use of a dangerous weapon, see WlS. STAT. § 940.23(1) (1997-98). He asserts two claims of alleged trial-court error. First, he contends that the trial court erroneously permitted a witness, Marcus Murff, to testify that Benton was the person who shot him and killed a man who was a passenger in a car being driven by Murff. Second, he argues that the trial court erroneously denied his motion to suppress a gun that was linked to the shooting. We affirm.

I.

¶ 2. Murff testified that he and Mardell Franklin were in a car waiting to enter a car wash when a man approached Franklin, who was sitting in the front passenger seat, exchanged words with Franklin, and then started shooting. When Murff, who was behind the wheel, saw that the man had a gun, he tried to drive off but was blocked by other cars. Franklin died from the shots; Murff was seriously injured. Murff told the jury that Benton was the shooter.

¶ 3. The day after Murff was shot, police officers went to his hospital room and showed him an array of six photographs, one of which was a photograph of Benton. He did not identify Benton from the array, and he later testified that he said he did not recognize Benton because he was injured and in pain, that he wanted "to get some rest," that "[p]eople were trying to get in [his] room," and that he "didn't really want to be bothered with the whole thing at the time." At the suppression hearing, however, Murff testified that he did recognize Benton from the array, but did not tell the police that, indicating that "at the time I need[ed] to see it in a lineup because the person was wearing a hat." One year and four months later, the police showed Murff an array of four photographs, and Murff recognized two of the four, one of whom was Benton. Again, however, Murff insisted to the officer that he needed to see a lineup. Four months later, Murff picked Benton as the shooter out of a five-person lineup. Benton claims that the identification procedure was impermissibly suggestive because he was the only person whose photograph was the same in both arrays. He also claims that the lineup was impermissibly suggestive because he was taller than two of the five persons in the lineup.

¶ 4. About three weeks after the shooting, Benton was a passenger in a car that was stopped by an Illinois law-enforcement officer. The officer testified that the car's registration had expired and was suspended because of a failure to comply with an Illinois law that requires all vehicles registered in that state to have insurance. Once stopped, the car's driver ran towards the officer and told the officer that neither he nor anyone of the three other people in the car owned it. The officer then called for backup support, which arrived. Violation of the Illinois mandatory-insurance law is a misdemeanor. The officer testified that it is his department's normal procedure to do an inventory search of vehicles that are to be towed, as they intended to do to the car. One of the backup officers searched the car and found two loaded guns under the front passenger seat. One of the guns was identified as the source of bullet fragments and casings found in Murff s car and of a casing that was found in Franklin's jacket following his shooting. Benton claims that the search violated his constitutional rights.

II.

A. Identification.

¶ 5. "A criminal defendant is denied due process when identification evidence admitted at trial stems from a pretrial police procedure that is 'so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167, 178 (1995) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). In reviewing a trial court's determination whether a pretrial identification should be suppressed, we apply the same rules as the trial court. State v. Haynes, 118 Wis. 2d 21, 31 n.5, 345 N.W.2d 892, 898 n.5 (Ct. App. 1984). First, we decide whether the pretrial procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Powell v. State, 86 Wis. 2d 51, 64, 271 N.W.2d. 610, 616 (1978) (quoted source omitted). The defendant has the initial burden on this issue. Id., 86 Wis. 2d at 65, 271 N.W.2d at 617. If the defendant shows that the procedure was impermissibly suggestive, the State must prove that the identification was reliable under the totality of the circumstances in order for the identification to be admissible. Haynes, 118 Wis. 2d at 31, 345 N.W.2d at 897. The trial court's findings of fact, of course, may not be disturbed unless they are "clearly erroneous." Wis. Stat. Rule 805.17(2) (made applicable to criminal proceedings by WlS. STAT. Rule § 972.11(1)). The legal issue of whether the mere fact that a defendant's photograph appeared in two successive photographic arrays taints a subsequent lineup identification is a legal issue that we review de novo. See State v. Eason, 2000 WI App 73 ¶ 3, 234 Wis. 2d 396, 399, 610 N.W.2d 208, 210 (application of facts to constitutional principles is subject to de novo review).

¶ 6. As noted, Benton claims Murffs identification of him as the shooter should have been excluded because the same photograph of him was shown to Murff in the first array the day after the shooting, and the second array, shown to Murff some sixteen months later. He does not contend that the first array was impermissibly suggestive.

¶ 7. The trial court denied Benton's motion to suppress Murff s identification of him, holding that, under the circumstances, neither the second photographic array nor the lineup was impermissibly suggestive. The trial court noted that there was "a great passage of time" between when each of the arrays was shown to Murff, and that, additionally, "the testimony of Mr. Murff shows that he maintained this notion that he really had to see the shooter in a line-up in order to be certain of his identification." Moreover, the trial court examined the pictures and noted that it did not "see anything in these pictures in and of themselves to show that they are, that the array is impermissible suggestive." In addressing Benton's contention that the lineup was impermissibly suggestive, the trial court ruled that the fact that two of the five persons were shorter than the others was not "the kind of difference that makes this line-up put together in an impermissible way."

¶ 8. As the State notes in its appellate brief, Benton is essentially seeking a per se rule that when a witness is shown successive photographic arrays that have the same photograph of the defendant in each, any identification of the defendant by that witness in a second or subsequent array or lineup is impermissibly suggestive. A per se approach, however, is contrary to the general rule in Wisconsin that whether an identification procedure is impermissibly suggestive must be decided on a case-by-case basis. See Wolverton, 193 Wis. 2d at 265, 533 N.W.2d at 178 (declining to hold that showing witnesses the defendant seated alone in the back of a squad car is per se impermissibly suggestive) (invoking prior case law that the practice of showing suspects singly to persons for the purpose of identification, and not part of a lineup, is not per se impermissibly suggestive); State v. Mosley, 102 Wis. 2d 636, 654, 307 N.W.2d 200, 211 (1981) (declining to hold that "a unique identifying feature ipso facto is unduly suggestive").

¶ 9. Benton bases his argument that using the same photograph of him in both arrays made the identification impermissibly suggestive on Foster v. California, 394 U.S. 440 (1969). In Foster, the defendant, accused of robbery, was placed in a lineup in which he was one of three men. 394 U.S. at 441. The defendant was "close to six feet in height"; the others "were short — five feet, five or six inches." Ibid. The defendant was wearing a leather jacket that the witness who was looking at the lineup said was worn by the robber. Ibid. The witness was uncertain that the defendant was the person. Ibid. When the witness asked to speak to the person he " 'thought'" was one of the robbers, the defendant and the witness were taken to a room where the only other persons were law-enforcement personnel. Ibid. The witness and the defendant sat across a table from one another. Ibid. The witness was still uncertain as to whether the defendant was one of the robbers. Ibid. A week or ten days later, the witness viewed a lineup with five men; the defendant was the only person who had been in both lineups. Id., 394 U.S. at 441-442. This time, the witness was " 'convinced'" that the defendant was the robber. Id., 394 U.S. at 442. The flaw in this procedure was summarized by Foster:

In the first lineup arranged by the police, petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. . . . Even after this the witness' identification of petitioner was tentative. So some days later another lineup was arranged. [Foster] was the only person in this lineup who had also participated in the first lineup. This finally produced a definite identification.
The suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify [Foster] whether or not he was in fact "the man." In effect, the police repeatedly said to the witness, "This is the man."

Id., 394 U.S. at 442-443 (internal citations omitted). Foster did not, however, lay down a per se rule; rather, it noted that under the circumstances of the case, "the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable." Id., 394 U.S. at 443. Indeed, the United States Supreme Court has emphasized that each challenge to a pretrial identification "must be considered on its own facts." Simmons, 390 U.S. at 384. The force of this recognition that a per se rule is inappropriate can best be gauged by repeating Simmons's rationale in full:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Ibid. Thus, relying on Simmons, Kain v. State, 48 Wis. 2d 212, 219, 179 N.W.2d 777, 782 (1970), held that whether showing a witness one photograph was imper-missibly suggestive depended on the circumstances in the case where that procedure was challenged: "A single photo identification is not to be presumed guilty until proved innocent."

¶ 10. It may very well be that under some circumstances using the same photograph of a defendant in successive arrays will be impermissibly suggestive. But that must be determined on a case-by-case basis and not by implementation of an inflexible per se rule. Inasmuch as Benton has not included in the appellate record any of the arrays or the photograph of the lineup we are unable to say, on our de novo review, that the trial court's cogent analysis is erroneous. See Duhame v. Duhame, 154 Wis. 2d 258, 269, 453 N.W.2d 149, 153 (Ct. App. 1989) (when appellate record is incomplete in connection with an issue raised by the appellant, we assume that the missing material supports the trial court's ruling). We are thus also unable to say on our de novo review that the trial court's conclusion that the lineup was not, in and of itself, impermissibly suggestive was erroneous. See ibid.;cf. United States v. Curry, 187 F.3d 762, 769 (7th Cir. 1999) (differences in height do not make a lineup impermissibly suggestive; defendant "shortest by several inches"); United States v. Funches, 84 F.3d 249, 253 (7th Cir. 1996) (defendant three to five inches shorter and twenty to forty-five pounds lighter than others in lineup).

B. Search of car.

¶ 11. Although the trial court upheld the search of the car in which Benton was riding as one incident to either an arrest or as an inventory search, we need not reach those issues because, as the State points out, Benton lacked a reasonable expectation of privacy in the area of the car where the guns were found and may thus not challenge the search. See Rakas v. Illinois, 439 U.S. 128 (1978). The fundamental principle recognized by Rakas is that Fourth Amendment rights against unreasonable searches and seizures are rights personal to those whose Fourth Amendment interests have been invaded:

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. A person who is aggrieved by an illegal search and seizure only through the introduction of. damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.

Id., 439 U.S. at 133-134 (internal citations omitted). Here, as in Rakas, Benton "asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized,” id., 439 U.S. at 148; indeed, all of the car's occupants, including the driver, disclaimed any possessory interest in the car or the guns. Moreover, as in Rakas, Benton has not demonstrated that he had "any legitimate expectation of privacy in the . . . area under the seat of the car" in which he was a mere passenger. Id., 439 U.S. at 148-149 ("passenger qua passenger simply would not normally have a legitimate expectation of privacy" in that area). Accordingly, Benton lacks standing to contest the search.

By the Court. — Judgment affirmed.

       In his notice of appeal, Benton mistakenly refers to the jury verdict as the judgment, and the judgment as an order. He also gives the wrong date for the judgment (referred to by him as an order).

       We may, of course, affirm the trial court for any reason. State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985).


author: NETTESHEIM, J.

text:
    In the Interest of Kendell G., a person Under the Age of 17: State of Wisconsin, Petitioner-Respondent, v. Kendell G., Respondent-Appellant.

    Court of Appeals

      No. 00-3240-FT.

      Submitted on briefs February 13, 2001.

    Decided March 28, 2001.

    2001 WI App 95
    (Also reported in 625 N.W.2d 918.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs oí Brian C. Findley, deputy first assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Ryan C. Wetzsteon, assistant district attorney, and Robert S. Flancher, district attorney.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶1. Kendell G. appeals from a juvenile court order that lifted a stay against a dispo-sitional order placing him in a secured correctional facility for one year. The issue is how much time Kendell must serve under the revised dispositional order. The juvenile court ruled that Kendell's placement terminates one year from the date the court lifted the stay. Kendell argues that his placement terminates one year from the date of the original dispositional order because the original order had not been extended. We affirm the juvenile court's ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. Based on a finding that Kendell had committed the crime of theft pursuant to WlS. STAT. § 943.20(1) (1999-2000), the juvenile court found Kende.ll delinquent and entered a dispositional order on November 11, 1999. The order placed Kendell under the supervision of the Human Services Department for a period of one year with placement at Carmelite School for Boys.

¶ 3. On January 18, 2000, the Department petitioned for a change in Kendell's placement pursuant to WlS. Stat. § 938.357 and a revision of the dispositional order pursuant to WlS. STAT. § 938.363. The petition was based on Kendell's alleged violation of the conditions of supervision. The juvenile court conducted a hearing on the petition on February 2, 2000. Based upon an agreement between the State and Kendell's attorney, the juvenile court entered an order changing Kendell's placement and revising the dispositional order. In its bench ruling, the court directed that:

the dispositional order be revised to provide that [Kendell] is to be placed under the supervision of the Wisconsin Department of Corrections for purposes of placement at the Ethan Allen School for a period of one year. That disposition will be stayed however, on the condition that Kendell comply fully with all of the other terms and provisions of the dispositional order that was previously entered. And further . . . the change in placement that is proposed will be approved to change placement from the Carmelite school as a Type II CCI placement to Homihome as a Type II CCI placement.

¶ 4. Later, Kendell again violated his supervision. As a result, the State brought a motion asking the juvenile court to lift the stay on Kendell's commitment to Ethan Allen. The juvenile court heard the motion on May 3, 2000. Kendell did not contest the motion. As a result, the court lifted the stay and directed that Kendell be placed at Ethan Allen, a secured correctional facility, for one year pursuant to WlS. STAT. § 938.34(4m). The court further ordered that the one-year placement would commence forthwith, May 3, 2000, and terminate on May 3, 2001.

¶ 5. Kendell disputed the juvenile court's determination regarding the duration of the placement order. He argued that his one-year placement at Ethan Allen should terminate on November 11, 2000, one year from the date of the original dispositional order. Under this computation, Kendell would be placed at Ethan Allen for approximately six months. Kendell based his argument on the fact that the original dispo-sitional order was for one year and had not been extended. See WlS. STAT. §§ 938.355(4), 938.365(lm), (4). In response, the court noted that there were no published decisions on the question, but that an unpublished decision supported the court's ruling. The court rejected Kendell's argument and confirmed its ruling that Kendell's one-year placement at Ethan Allen would commence forthwith and terminate on May 3, 2001. Kendell appeals.

DISCUSSION

¶ 6. Kendell does not dispute the original disposi-tional order, the revision order, or the order lifting the stay. His only quarrel is with the juvenile court's ruling that the placement endures for one year from May 3, 2000, the date the court lifted the stay on the placement. Kendell argues that the court's ruling impermissibly extends the duration of the original dis-positional order beyond the one-year limitation set out in WlS. Stat. § 938.355(4) because that order had not been extended pursuant to Wis. Stat. § 938.365.

¶ 7. Kendell relies on Wis. Stat. § 938.363(l)(b), which provides, in part, that "[n]o revision may extend the effective period of the original order, or revise an original order ... to impose more than 30 days of detention, nonsecure custody or inpatient treatment on a juvenile." He also relies on WlS. STAT. § 938.357(6), which provides that "[n]o change in placement may extend the expiration date of the original order." Since the revision order changed both his placement and revised the original disposition, Kendell contends that the revision order violated both of these statutes.

¶ 8. The State relies on WlS. STAT. § 938.34(16), which allows a juvenile court to stay a dispositional order. The State says that an imposed and stayed provision of a dispositional order does not trigger the one-year limitation of WlS. STAT. § 938.355(4) until the stay is lifted. Therefore, the State contends that an extension of the original dispositional order was not necessary under the facts of this case.

¶ 9. The issue presents a question of statutory interpretation, which this court reviews de novo. See State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311 (Ct. App. 1987). If the language of the statute is clear and unambiguous, the primary source of statutory interpretation is the statute itself. See Robert Hansen Trucking, Inc. v. LIRC, 126 Wis. 2d 323, 332, 377 N.W.2d 151 (1985). "All words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning." Wis. STAT. § 990.01(1). This court may look to recognized dictionaries to ascertain common and approved meanings of nontechnical and technical words. See State v. Grady, 175 Wis. 2d 553, 558, 499 N.W.2d 285 (Ct. App. 1993).

¶ 10. WISCONSIN Stat. § 938.34 sets out the dispo-sitional alternatives available to a juvenile court in a delinquency case. Subsection (16) states in pertinent part:

Stay of order. After ordering a disposition under this section, enter an additional order staying the execution of the dispositional order contingent on the juvenile's satisfactory compliance with any conditions that are specified in the dispositional order .... If the juvenile violates a condition of his or her dispositional order, the agency supervising the juvenile shall notify the court and the court shall hold a hearing... to determine whether the original dispositional order should be imposed.... The court may not impose the original dispositional order unless the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order.

¶ 11. This language clearly contemplates that the juvenile court will enter two orders when the court stays all, or part, of a disposition. First, the court orders the disposition; second, the court "enter[s] an additional order staying the execution of the disposi-tional order." Id. (emphasis added). While, as a practical matter, these two determinations are commonly embodied in á single dispositional order, the fact remains that the statute envisions two discrete actions by the juvenile court.

¶ 12. Here, the juvenile court originally placed Kendell under the supervision of the Department subject to appropriate conditions. The court did not stay this disposition. After Kendell had violated the conditions of his supervision, the court revised the dispositional order to impose the more severe sanction of a one-year placement at Ethan Allen. However, the court also chose to stay that revised disposition. To "stay" an order means to "refrain from enforcing it." Black's Law Dictionary 1413 (6th ed. 1990).

¶ 13. We conclude that the juvenile court's decision to stay Kendell's placement pursuant to WlS. STAT. § 938.34(16) eliminated the need for any extension of the original dispositional order, including any revisions thereof. Kendell's placement at Ethan Allen under the revised order was not executed against him because it was stayed, meaning the trial court was "refrain[ed] from enforcing it." Instead, the placement would become effective only if the stay was lifted. We therefore conclude that the running of the one-year limitation of WlS. Stat. § 938.355(4) as to Kendell's placement at Ethan Allen commenced when the juvenile court lifted the stay on the placement.

¶ 14. We find support for our holding in S.D.R. v. State, 109 Wis. 2d 567, 575, 326 N.W.2d 762 (1982), where the supreme court construed the one-year limitation statute as it existed in the former juvenile code. See WlS. Stat. § 48.355(4) (1979-80). There, the juvenile argued that he had been unconstitutionally restrained because the State's extension request, while filed before the original disposition had expired, could not be heard until after the order had expired. S.D.R., 109 Wis. 2d at 573-77. The court rejected this argument because "it only looks to one subsection of ch. 48 in isolation." S.D.R., 109 Wis. 2d at 574. Instead, the court said that it was appropriate to examine "the entire juvenile adjudication process." Id. (emphasis added). Of particular importance to our case, the court further stated that "the legislature intended the process to be viewed as a continuum." Id. at 575. And the court concluded, "The Code, when viewed in its entirety, did not set up a system whereby a juvenile is automatically released at the end of the dispositional order." Id.

¶ 15. Like the juvenile in S.D.R., we conclude that Kendell reads the one-year provision of WlS. Stat. § 938.355(4) too narrowly and in isolation. Kendell would limit the one-year limitation to the original dis-positional order and to the exclusion of the subsequent proceedings in the case. But in the later revision order, the juvenile court injected an entirely new and different dimension to this case by opting for a different dispositional alternative under WlS. STAT. § 938.34 — confinement in a secured correctional facility under subsec. (4m) and a stay of that sanction under subsec. (16). Obviously, that revised disposition was not previously subject to the one-year limitation of § 938.355(4) because it did not previously exist. It therefore makes sense that the one-year limitation should first apply when the juvenile court later lifted the stay.

¶ 16. Wisconsin Stat. § 938.34(16) permits a juvenile court to stay the imposition of a dispositional order or a portion thereof, including revisions, in order to give the juvenile a second chance to conform his or her behavior to any conditions imposed by the court. Failure to comply with the conditions can trigger the commencement of the stayed portion of the disposi-tional order. It would be unreasonable for this court to conclude that a dispositional order that has been stayed pursuant to § 938.34(16) commences any earlier than the date the stay is lifted by the juvenile court. As such, it would be equally unreasonable to conclude that the order terminates earlier than it expressly provides. See Nutter v. Milwaukee Ins. Co., 167 Wis. 2d 449, 458, 481 N.W.2d 701 (Ct. App. 1992).

By the Court. — Order affirmed.

       A11 references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The petition indicated that the Department was seeking only a change in placement. However, the social history supporting the petition revealed that the Department was also seeking a revision of the dispositional order by asking the juvenile court to impose a stayed placement with corrections. The juvenile court therefore construed the petition as seeking both remedies. Kendell did not object.

       Wisconsin Stat. § 938.34(4d) provides for placement in a Type 2 setting if the juvenile has been found delinquent for an act which if committed by an adult is punishable by a sentence of six months or more and if the juvenile court has found the juvenile to be dangerous and in need of restrictive juvenile custody.

       Kendell's decision not to contest the State's motion was part of an agreement whereby the State agreed not to issue a delinquency petition on a new theft offense.

       We appreciate that in S.D.R. v. State, 109 Wis. 2d 567, 326 N.W.2d 762 (1982), the supreme court held that the juvenile was not entitled to release because the State had timely filed an extension request whereas here the State did not. However, our point in citing S.D.R. is to demonstrate that we must view WlS. Stat. ch. 938 in its entirety and as a continuum. While S.D.R. focused on the effect of the filing of the extension request, here the focus is on the effect of the stay.


author: DYKMAN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Troy B. BAKER, Defendant-Appellant.
    Court of Appeals

      No. 99-3347-CR.

      Submitted on briefs June 23, 2000.

    Decided March 29, 2001.

    2001 WI App 100
    (Also reported in 626 N.W.2d 862.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.

      Before Dykman, P.J., Roggensack and Deininger, JJ.
   DYKMAN, P.J.

¶ 1. Troy B. Baker appeals from a judgment convicting him of sexual assault of a child and from an order denying his motion for postcon-viction relief. Baker argues that the trial court erred in ordering him to pay restitution to Vernon County Department of Human Services (DHS) because the county could not be reimbursed as a victim of his crime and because Medical Assistance could not be considered an insurer under the restitution statute. We conclude that the county need not have been a victim and that it is entitled to reimbursement as an insurer who has compensated a victim. Therefore, the trial court properly ordered Baker to reimburse Vernon County DHS. Baker also argues that the trial court lacked authority to order that restitution be withheld from his prison wages. We disagree and conclude that the applicable statutes authorize disbursement from prison wages. We therefore affirm.

I. Background

¶ 2. Baker sexually assaulted Elizabeth G., a minor, in September 1998. After the assault, Elizabeth G. underwent a medical examination, pregnancy testing, and sexually transmitted disease testing at a La Crosse hospital. According to the State, Vernon County DHS paid $104.37 Ada Medical Assistance for Elizabeth G.'s hospital expenses. After a guilty plea, Baker was convicted of first-degree sexual assault of a child in violation of WlS. Stat. § 948.02(1) (1995-96).

¶ 3. The trial court ordered Baker to pay the $104.37 as restitution and directed that payment be made to Vernon County DHS. The trial court also ordered Baker to pay other restitution amounts directly to Elizabeth G. totaling $262.51. Finally, the trial court directed that the restitution sums be withheld from any prison wages Baker might earn. In a postconviction motion, Baker asked the trial court to vacate the restitution order and the portion of the judgment of conviction directing him to pay Vernon County DHS and authorizing that restitution payments be withheld from his prison wages and accounts. The trial court denied the motion, and Baker appeals.

II. Analysis

¶ 4. This case presents questions involving the interpretation and application of the restitution statute as well as the scope of the trial court's authority under that statute. These are questions of law that we review de novo. State v. Howard-Hastings, 218 Wis. 2d 152, 154, 579 N.W.2d 290 (Ct. App. 1998) (interpretation of statute); State v. Boffer, 158 Wis. 2d 655, 658, 462 N.W.2d 906 (Ct. App. 1990) (scope of trial court's authority).

A. Medical Assistance As Insurer under WlS. Stat. § 973.20(5)(d)

¶ 5. Wisconsin Stat. § 973.20 (1999-2000), the restitution statute, provides the trial court with a number of options in ordering restitution. The breadth of the statute is limited by subsec. (lr), which provides that a defendant generally may be ordered to make restitution only to "any victim of a crime considered at sentencing . . . ." However, at least one subsection of § 973.20 unambiguously provides for restitution to a party other than the victim:

(5) In any case, the restitution order may require that the defendant do one or more of the following:
(d) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.

Thus, § 973.20(5)(d) permits payment to a third person rather than the victim of the crime. See Boffer, 158 Wis. 2d at 661.

¶ 6. Relying on State v. Schmaling, 198 Wis. 2d 756, 761, 543 N.W.2d 555 (Ct. App. 1995), Baker nevertheless argues that Vernon County DHS cannot be reimbursed under the restitution statute because it is not an actual victim of his crime. In Schmaling, the defendant faced seven felony counts relating to a freeway accident that caused a tanker to burst into flames. Id. at 758. The trial court ordered the défendant to pay restitution, including fire fighting and cleanup expenses that the county incurred. Id. at 759. We reversed, concluding that the county could not recover restitution for fire fighting and cleanup expenses because it was not the "actual victim" of the defendant's crimes. Id. at 761.

¶ 7. Our decision in Schmaling is readily distinguishable because we were not interpreting or applying WlS. Stat. § 973.20(5)(d), and we therefore did not address whether the fire department was acting as an "insurer, surety or other person." The State's argument, which we rejected, was that the fire department expenses were "special damages" under subsec. (5)(a) of the restitution statute. Schmaling, 198 Wis. 2d at 760-61.

¶ 8. Baker also argues that, at least in this case, Medical Assistance cannot be considered an insurer under WlS. STAT. § 973.20(5)(d) because the victim of his crime, Elizabeth G., failed to present evidence that the program was obligated to make the $104.37 payment or that it had a "subrogation-type relationship" with Elizabeth G. as would a private insurer. According to Baker, Elizabeth G. thus failed to carry her burden of proof under § 973.20(14)(a). We disagree.

¶ 9. Wisconsin Stat. § 973.20(14)(a) states in relevant part: "The burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim." This language refers to the victim's burden of proof only as to the amount of loss sustained by the victim. Nothing in the language of § 973.20(14)(a) suggests that the victim carries a similar burden to show an insurer's obligation to pay or the existence of an insurer's right to subrogation.

¶ 10. We also construe Baker's reliance on WlS. Stat. § 973.20(14)(a) as an assertion that Medical Assistance is not, as a matter of law, an "insurer, surety or other person who has compensated a victim" for purposes of § 973.20(5)(d). However, we reject this assertion as well.

¶ 11. The plain language of WlS. STAT. § 973.20(5)(d) suggests no distinction between a private insurer and public insurer. Section 973.20(5)(d) simply states that a restitution order may provide for reimbursement of an "insurer, surety or other person who has compensated a victim." While Medical Assistance is a social welfare program, it is the equivalent of health insurance. See Ellsworth v. Schelbrock, 2000 WI 63, ¶ 11, 235 Wis. 2d 678, 611 N.W.2d 764; Tannler v. DHSS, 206 Wis. 2d 386, 388, 557 N.W.2d 434 (Ct. App. 1996), aff'd, 211 Wis. 2d 179, 564 N.W.2d 735 (1997). Private insurance companies pay benefits only to their insureds; however, they must pay benefits to those insureds. Similarly, Medical Assistance pays for health care services only for those who meet strict eligibility criteria; however, Medical Assistance must pay benefits on behalf of those who meet the criteria. See WlS. STAT. § 49.47(l)-(6); Tannler, 206 Wis. 2d at 388. Just as private insurers do not normally make payments on behalf of insureds unless they are required to do so by contract, Medical Assistance does not normally pay for health services it is not required to pay by law.

¶ 12. Private insurers may have a right to subro-gation against their insureds under the insurance contract or, under some circumstances, by operation of law. See Lambert v. Wrensch, 135 Wis. 2d 105, 116-17, 399 N.W.2d 369 (1987). The State and county, in their role as providers of Medical Assistance, also have a right to subrogation, although it is statutorily created. See Wis. Stat. § 49.89(2); Ellsworth, 2000 WI 63 at ¶ 19. We have held that, under some circumstances, § 49.89 provides the State and county with an even more extensive right to subrogation than would be available under the common law. See Coplien v. DHSS, 119 Wis. 2d 52, 56-57, 349 N.W.2d 92 (Ct. App. 1984).

¶ 13. Based on the plain language of WlS. STAT. § 973.20(5)(d), the nature of Medical Assistance, and the State and county's right to subrogation under WlS. Stat. § 49.89(2), we conclude that Medical Assistance is an insurer like any other for purposes of § 973.20(5)(d). Victims need not present evidence of the government's obligation to pay or of its subrogation relationship in each case, and the trial court properly ordered Baker to make restitution to Vernon County DHS under § 973.20(5)(d).

B. Restitution Withheld from Prison Wages

¶ 14. Baker next argues that the trial court had no authority to order that restitution be withheld from his prison wages. He asserts that under the Wisconsin penal scheme, the Department of Corrections (DOC), not the trial court, is charged with running state prisons, and that even the DOC's authority to disburse prison wages is limited under WlS. STAT. chs. 301 and 303.

¶ 15. Wisconsin Stat. § 973.20 contains several provisions that bestow authority on the trial court to fashion an order to achieve the goals of the restitution statute. Under § 973.20(10), the trial court may require a defendant to pay restitution "immediately, within a specified period or in specified instalments." Under § 973.20(7), if the court orders restitution for more than one person, "the court may direct the sequence in which payments are to be transferred . . . ." Section 973.20(ll)(a) states that "the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the [DOC] for transfer to the victim or other person to be compensated ...."

¶ 16. In addition, WlS. Stat. § 973.20(ll)(b) requires the DOC to "establish a separate account for each person in its custody or under its supervision ordered to make restitution for the collection and disbursement of funds." Based on these provisions in § 973.20, the State contends that, by ordering disbursement from prison wages, the trial court was merely implementing the statutory scheme.

¶ 17. Baker argues that the DOC's authority to disburse prison wages is strictly circumscribed by other statutes. He refers us to Wis. Stat. § 301.31, which states:

Wages to prisoners. The [DOC] may provide for assistance of prisoners on their discharge; for the support of their families while the prisoners are in confinement; or for the payment, either in full or ratably, of their obligations acknowledged by them in writing or which have been reduced to judgment by the allowance of moderate wages .... Until the prisoner's final discharge, the funds arising from the wages shall be under the control of the officer in charge of the institution and shall be used for the benefit of the prisoner, the prisoner's family and other obligations specified in this section. Earnings by inmates working in the prison industries and the retention and distribution thereof shall be governed by ss. 303.01(4) and (8) and 303.06(2).

WISCONSIN Stat. § 303.01(4) pertains to wage standards and Wis. Stat. § 303.06(2) pertains to sale of prison products. We agree that § 303.01(8) provides guidelines regarding the allowable prison wage distributions that concern us here. Section 303.01(8) enumerates specific purposes for which the DOC must distribute earnings of an inmate. That section reads in part:

(b) The [DOC] shall distribute earnings of an inmate or resident, other than an inmate or resident employed under sub. (2)(em), for the crime victim and witness assistance surcharge under s. 973.045(4), for the delinquency victim and witness assistance surcharge under s. 938.34(8d)(c), for the deoxyribonucleic acid analysis surcharge under s. 973.046(4) and for compliance with s. 303.06(2) and may distribute earnings for the support of the inmate's or resident's dependents and for other obligations either acknowledged by the inmate or resident in writing or which have been reduced to judgment that may be satisfied according to law.

A provision specifically allowing for distributions for restitution is absent. However, we conclude that a judgment of conviction including an order to pay restitution is an "other obligation[ ]... reduced to judgment that may be satisfied according to law." Therefore, § 303.01(8)(b) gives the trial court the authority to order restitution be disbursed from prison wages.

¶ 18. In State v. Evans, 2000 WI App 178, ¶ 11, ¶ 16, 238 Wis. 2d 411, 617 N.W.2d 220, review denied, 2001 WI 1, 239 Wis. 2d 773, 621 N.W.2d 629, a case decided after the parties submitted their briefs, we reversed a trial court's decision to order disbursement from a defendant's prison earnings. However, Evans does not preclude our decision here. In Evans, we examined Wis. Stat. § 973.20(13)(c), which sets out four separate procedures for a trial court to use when the restitution amount cannot be determined at the sentencing hearing. Id. at ¶¶ 13-14. The trial court in Evans deviated from the four permissible procedures, and instead ordered the defendant to pay restitution "up to 25 percent of his prison earnings account." Id. at ¶ 11. The trial court in Evans did not set a specific amount of restitution, and we noted that the amount "might turn out to be anything." Id. at ¶ 15. Thus, our focus in Evans was not on the fact that the trial court ordered restitution from prison earnings, but that the trial court's action referred the determination of the amount of restitution to the DOC. Id. That is not a concern before us here.

¶ 19. In sum, we conclude that the trial court properly ordered restitution payable to Vernon County DHS, and that restitution may be disbursed from Baker's prison wages.

By the Court. — Judgment and order affirmed.

       The judgment of conviction was dated March 22, 1999. A second judgment of conviction dated March 25, 1999, also appears in the record, but its purpose seems limited to amending the sentence credit due Baker from 113 to 176 days and incorporating the restitution order.

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

       The options are so numerous that, in the interest of space, we do not recite them all here. One subsection of WlS. STAT. § 973.20 provides the following modes of restitution:
      (5) In any case, the restitution order may require that the defendant do one or more of the following:
      (a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could he recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.
      (b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a crime considered at sentencing was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the crime.
      (c) Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the defendant for a crime for which the defendant was convicted or to the apprehension or prosecution of the defendant for a read-in crime.
      (d) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.

       "Crime considered at sentencing" is limited to "any crime for which the defendant was convicted and any read-in crime." WlS. STAT. § 973.20(lg)(a).

       Baker refers to WlS. Stat. § 973.20(4)(d) in his briefs, but it is clear from his argument that he intended to refer to § 973.20(5)(d).

       Wisconsin Stat. § 49.89(2) states in part:
      SUBROGATION. The department of health and family services, the department of workforce development, a county or an elected tribal governing body that provides any public assistance under this chapter or under s. 253.05 as a result of the occurrence of an injury, sickness or death that creates a claim or cause of action, whether in tort or contract, on the part of a public assistance recipient or beneficiary or the estate of a recipient or beneficiary against a 3rd party, including an insurer, is subrogated to the rights of the recipient, beneficiary or estate and may make a claim or maintain an action or intervene in a claim or action by the recipient, beneficiary or estate against the 3rd party.

       In Coplien v. DHSS, 119 Wis. 2d 52, 54, 349 N.W.2d 92 (Ct. App. 1984), we were interpreting what was then WlS. Stat. § 49.65 (1981-82). Section 49.65 was amended and renumbered to WlS. Stat. § 49.89. See 1995 Wis. Act 27, § 3152. However, the amendment does not change our analysis. Section 49.89(2) has also been amended to provide that Medical Assistance subrogation constitutes a lien, see 1999 Wis. Act 9, § 1489, however, this does not affect our analysis either.

       Having concluded that Medical Assistance is an "insurer, surety or other person" under WlS. STAT. § 973.20(5)(d), we need not address Baker's argument that the Medical Assistance payments were not taxable as costs under WlS. STAT. § 973.06.

       While the state and federal government are jointly responsible for funding Medical Assistance, see Ellsworth v. Schelbrock, 2000 WI 63, ¶ 10, 235 Wis. 2d 678, 611 N.W.2d 764, the state typically delegates administration of the program to county human and social service agencies, see WlS. STAT. § 49.45(2)(a)3. In this case, it appears that Vernon County DHS disbursed payment for Elizabeth G.'s medical services, and was therefore the proper agency for reimbursement under WlS. Stat. § 973.20(5)(d).