author: FINE, J. WEDEMEYER, EJ.

text:
    Patricia Moran and Frank Moran, Plaintiffs-Appellants, v. Milwaukee County and Global Aerospace, Inc., Defendants-Respondents, Blue Cross Blue Shield of Illinois, Defendant.
    Court of Appeals

      No. 04-0709.

      Submitted on briefs December 7, 2004.

    Decided January 25, 2005.

    2005 WI App 30
    (Also reported in 693 N.W.2d 121.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of John P. Higgins of Guttorm-sen, Hartley, Guttormsen, Wilk & Higgins, of Kenosha.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Daniel I. Hanrahan of Quarles & Brady, LLP, of Milwaukee.
    Before Wedemeyer, EJ., Fine and Kessler, JJ.

       Petition to review denied 4-6-2005.

   FINE, J.

¶ 1. Patricia Moran and her husband Frank Moran appeal from a summary judgment dismissing their complaint against Milwaukee County and Global Aerospace, Inc., Milwaukee County's insurance carrier, in connection with the Morans' personal-injury claim against Milwaukee County. The only issue is whether Wis. Stat. § 893.80(1)(a) bars that claim. The trial court ruled that it does. We affirm.

I.

¶ 2. Patricia Moran alleges that she was injured when, on November 22, 2000, she tripped over what her complaint calls a "sign plate in the parking garage of General Mitchell International Airport." She filed this action against Milwaukee County and Global on May 21, 2003.

¶ 3. Lawsuits against governmental entities like Milwaukee County are regulated by Wis. Stat. § 893.80(1). It provides, with the parts material to this appeal in italics:

Except as provided in subs, (lg), (lm), (lp) and (8), no action may be brought or maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employee of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employee under s. 801.11. Failure to give-the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employee.

(Italics added.) Thus, a notice is not "requisite notice" under § 893.80(1)(a) unless it:

• is served in the way set out in Wis. Stat. Rule 801.11 on the ultimate defendant "[wjithin 120 days after the happening of the event giving rise to the claim";
• describes "the circumstances of the claim"; and
• is signed by either the party or his or her "agent or attorney."

If all of this is not done, the action must be dismissed unless the plaintiff can prove "that the delay or failure to give the requisite notice has not been prejudicial to the defendant." § 893.80(1)(a). "The plaintiff has the burden of proving the giving of notice or actual notice and the nonexistence of prejudice." Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206, 208 (Ct. App. 1982).

¶ 4. The Morans contend that Mrs. Moran gave the requisite 120-day notice under Wis. Stat. § 893.80(1) when, on December 5, 2000, she filled out part of a "Combined Report" on a document headed "General Mitchell International Airport." (Uppercasing omitted.) The report instructed the person completing the form to "check all that apply" and gave the following choices: "incident"; "accident"; "injury"; and "property damage." (Uppercasing omitted.) A heavy handwritten "X" appears next to "incident"; the others are blank. In response to the form's request for a "[d]etailed description of what happened," Moran wrote: "tripped and caught right foot which I jammed knee on A [sic] bolted sign holder sticking out of ground with no sign on it. It was unmarked that day." The date of the "incident" was given as November 22, 2000. In response to the form's request to "[n]ote any apparent injuries or damage" there is an uppercased hand-printed "unk." In the place for "name, address and telephone # of any witnesses" is an "N/A." The trial court determined that this "Combined Report" did not satisfy § 893.80(1), and, further, that although Mrs. Moran sent to the Milwaukee County Clerk and the airport's director a document dated April 1, 2002, that purported to be a formal "Notice of Injury under Section 893.80," the Morans had not shown that Milwaukee County was not prejudiced.

II.

¶ 5. As noted, the trial court decided this case on summary judgment. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). In order to survive summary judgment, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," Wis. Stat. Rule 802.08(3), pertinent to that element, Transportation Insurance Co. v. Hunzinger Construction Co., 179 Wis. 2d 281, 290-292, 507 N.W.2d 136, 139-140 (Ct. App. 1993). This appeal turns on two matters. First, whether the Morans gave the requisite Wis. Stat. § 893.80(1) notice to Milwaukee County. Second, if not, whether they have established that there are facts that demonstrate Milwaukee County was not prejudiced. Prejudice vel non is, however, a legal issue that we decide de novo. Olsen v. Township of Spooner, 133 Wis. 2d 371, 379, 395 N.W.2d 808, 811 (Ct. App. 1986). We discuss these matters in sequence.

A. Wisconsin Stat. §893.80(1).

¶ 6. As we have seen, Wis. Stat. § 893.80(1)(a) requires that the 120-day notice be both "signed by the party, agent or attorney," and, also "served on the. . . political corporation, governmental subdivision or agency . . . under s. 801.11." The December 2000, "Combined Report" satisfies neither of these requirements. First, contrary to the Morans' representations in their appellate briefs, the December 5, 2000, "Combined Report" was not signed by either Patricia Moran or her agent or attorney. Second, Wis. Stat. Rule 801.11(4)1 requires that counties be served by serving "the chairperson of the county board or the county clerk." The December 2000, "Combined Report" was not served on either the chairperson of the Milwaukee County board or on the Milwaukee County clerk, and thus the Morans did not comply with Rule 801.11(4)1. Cf. Medley v. City of Milwaukee, 969 F.2d 312, 320 (7th Cir. 1992) (service of § 893.80 notice on the United States Department of Housing and Urban Development not service on City of Milwaukee even though Department may have forwarded notice to the City). Accordingly, we must now turn to whether the Morans have established that Milwaukee County was not prejudiced by their failure to comply with the formal-notice requirements of § 893.80(1).

B. Prejudice.

¶ 7. As noted, whether a plaintiff has proven that the governmental entity was not prejudiced by the plaintiffs failure to comply with the formal 120 day notice requirements of Wis. Stat. § 893.80(1) is a legal issue subject to our de novo review. Olsen, 133 Wis. 2d at 379, 395 N.W.2d at 811. Section 893.80(1) is designed to ensure that the entity will have enough information —either formally by virtue of the 120 day notice, or via the lack-of-prejudice avenue — about the plaintiffs injury to be able to fully investigate "the circumstances giving rise to a claim." Elkhorn Area Sch. Dist., 110 Wis. 2d at 5, 327 N.W.2d at 208. An irreducible minimum of this enough-information requirement is that the governmental entity know the "type of damage alleged to have been suffered by a potential claimant." Markweise v. Peck Foods Corp., 205 Wis. 2d 208, 220, 556 N.W.2d 326, 331 (Ct. App. 1996).

¶ 8. The Morans point to two documents that they say gave Milwaukee County sufficient notice so that it was not prejudiced: (1) the December 5, 2000 "Combined Report," and (2) the April 1, 2002, formal "notice of injury." (Uppercasing omitted.)

1. The December 5, 2000, "Combined Report"

¶ 9. As we have seen, the only information material to our analysis given by the December 5, 2000 "Combined Report" was that:

• Mrs. Moran "tripped and caught [her] right foot which [she] jammed [her] knee on";
• Mrs. Moran tripped on an "unmarked" "bolted sign holder sticking out of [the] ground with no sign on it"; and
• Mrs. Moran's "apparent injuries" were "un-k[nown]." (Uppercasing omitted.)

Although this revealed the "type of damage," see id., 205 Wis. 2d at 220, 556 N.W.2d at 331, namely, that Mrs. Moran "jammed" her knee, it did not give any indication whether that was a serious or a superficial injury. As we discuss below, this is significant in assessing whether the Morans have proved that Milwaukee County was not prejudiced by their failure to give the requisite 120 day notice.

¶ 10. Mrs. Moran's April 1, 2002, "notice of injury" asserted that as a result of her tripping on the sign seventeen months earlier she "has suffered an injury to her right knee, which has required surgery, as well as having developed tarsal tunnel syndrome and RSD [Reflex Sympathetic Dystrophy] to the right lower extremity." Also, on May 14,2002, Mrs. Moran filled out a questionnaire given to her by an adjuster for Milwaukee County and wrote that she was working at the airport the day she tripped over the sign holder but was, as of May 14, 2002, "disabled." The December 2000 "Combined Report," however, gave no notice that Mrs. Moran's injuries were or could be that serious. Cf. Olsen, 133 Wis. 2d at 377-378, 395 N.W.2d at 811 (mere knowledge that property was affected by construction was not sufficient for governmental entity to assess claimed damage). Thus, although Milwaukee County took two photographs of the sign holder, the County had no reason or duty to investigate further. Simply put, it is contrary to the protection afforded by Wis. Stat. § 893.80(1) to force a government entity to spend resources and taxpayer money to investigate every injury where the requisite 120 day notice is not given on the mere chance that the injury may turn out to be catastrophic, irrespective of how minor it may seem initially. As of the December 5, 2000, "Combined Report," as far as Milwaukee County knew, Mrs. Moran's tripping-related injury was not serious.

2. The April 1, 2002, "Notice of Injury."

¶ 11. Mrs. Moran's April 1,2002, "notice of injury" did, for the first time, alert the County that her claimed injuries were serious. (Uppercasing omitted.) This was fleshed out by Mrs. Moran's May 14, 2002, handwritten questionnaire answers, which asserted that:

• Mrs. Moran was "working at the Hertz car rental inside counter" at the airport that day;
• she tripped in the "late afternoon" while walking in the airport's parking garage "from Hertz car rental... to the Hertz Gold Booth in the parking garage";
• she did not "completely fall," but "[i]t took a few steps to slow down the momentum" of her tripping;
• she "was in a lot of pain and limp[ing]," and "went to the gold booth [and] got what [she] needed";
• she "[w]ent back to the airport" and "told a couple of the girls what happened"; and
• she "tried to work a bit more but was hurting so [she] went home."

Mrs. Moran's handwritten May 14 report also alleged that she "still [has] problems with pain," that she "take[s] a lot of medication," that she was seeing a physical therapist twice a week, and that she has not "really resumed [her] normal life at all!"

¶ 12. Although, we can assume that, like the Town of Silver Cliff in Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 334 N.W.2d 242 (1983), Milwaukee County could now assess the nature and extent of Mrs. Moran's treatment, Mrs. Moran was unable in 2002, and is unable now, to tell Milwaukee County: (1) who might have seen her trip; (2) who saw her immediately after she tripped; or (3) to whom she spoke after the accident. Indeed, in a July 12, 2002, letter from her lawyers to the adjuster for Milwaukee County, Mrs. Moran indicated that although she was not working for Hertz, but, rather, Shared Technologies Cellular, "[s]he would visit the [Hertz] gold booth approximately once each day she worked," and "[t]hough there were individuals at the gold booth on the day of the accident," she did "not recall their names." Milwaukee County has no way apparent from this record of investigating the contemporaneous impressions that are essential to properly assess both a plaintiffs story of injury and the County's share of potential liability for that injury. Milwaukee County is stuck with Mrs. Moran's recollections. Thus, Nielsen, upon which the Morans rely, is inapposite because although in that case the Town was told late that Randall Nielsen hurt his back when he lifted "a large stone monument" off a child's leg on which it had fallen, Nielsen, 112 Wis. 2d at 575-576, 334 N.W.2d at 243, there was no indication that the Town was thereby prevented from learning from witnesses what had happened, id., 112 Wis. 2d at 581-582, 334 N.W.2d at 246. Indeed, the insurance company's claims manager in Nielsen conceded that the company's investigation was not prejudiced. Id., 112 Wis. 2d at 582, 334 N.W.2d at 246. The situation here is different and, on our de novo review, we agree with the trial court that the Morans have not satisfied their burden of showing that Milwaukee County was not prejudiced by their failure to give the requisite 120 day notice under Wis. Stat. § 893.80(1).

By the Court. — Judgment affirmed.

WEDEMEYER, EJ.

¶ 13. (dissenting). I write separately because, based on the facts presented, I would reverse the trial court's decision and remand for further proceedings.

¶ 14. The purpose of Wis. Stat. § 893.80(l)(a) is to give the governmental unit notice that an injury has occurred and offer it an opportunity to investigate. Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 580, 334 N.W.2d 224 (1982). The statute requires the injured party to identify the circumstances of the claim within 120 days of the event. Probst v. Winnebago County, 225 Wis. 2d 753, 757-58, 593 N.W.2d 478 (Ct. App. 1999).

¶ 15. Here, there is no dispute that the December 5 incident report was a written report provided to the County within the 120-day notice period. The dispute concerns whether the information provided therein is sufficient to put the County on notice that Patricia may file a claim. I conclude that the incident report, although not ideal, satisfies the basic requisites of the statute. The report was filled out by Patricia, who provided her printed name, address and description of what happened. It identified the accident site, the cause of the accident, and the fact that she injured her knee. In response to the report, the County inspected the accident site, took photographs, and removed the hazard. Thus, the report satisfied both purposes of the statute.

¶ 16. The trial court ruled in favor of the County because the December 5 report was marked "incident" only and not marked "injury." I do not find this factor dispositive. Although it would have been preferable if Patricia had marked both boxes, the substance of the report clearly revealed that she injured her knee during the incident. This was sufficient to provide notice to the County that an injury occurred. The case law does not require strict compliance with the statute, DNR v. City of Waukesha, 184 Wis. 2d 178, 198, 515 N.W.2d 888 (1994); rather, it demands only substantial compliance, see State v. Town of Linn, 205 Wis. 2d 426, 435, 556 N.W.2d 394 (Ct. App. 1996).

¶ 17. My review demonstrates that the December 5 report constitutes substantial compliance with the notice of injury statute. The report provided the County with the basic circumstances of the incident and indicated that Patricia had hurt her knee as a result of the incident. As a direct result of the report, the County conducted an investigation, took photographs to preserve the evidence, and removed the sign which caused the problem.

¶ 18. Based on the foregoing, I conclude that the trial court erred in dismissing the Morans' complaint. I would reverse the judgment and remand the matter for further proceedings consistent with this opinion.

       The exceptions listed in Wis. Stat. § 893.80(1) do not apply here.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    Lisa J. Brown, Estate of Damon L. Brown, Jr., and Damon L. Brown, Sr., Plaintiffs, Waukesha County Department of Health & Social Services, Subrogated-Plaintiff, v. MR Group, LLC, Michael Fohl, Herrell Grading Inc., a/k/a Herrell Trucking, Inc., and General Casualty Company of Wisconsin, Defendants, Ralph W. Raush, Individually and d/b/a West Avenue Real Estate, LLC, formerly d/b/a MR Group, LLC, a/k/a RWR Storage, and d/b/a All One Storage, formerly d/b/a Lake & Country Storage of Muskego, formerly d/b/a U-Lock Up Self Storage, Defendant-Appellant, Acuity, A Mutual Insurance Company, Intervenor, West Bend Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 03-2309.

      Submitted on briefs December 15, 2004.

    Decided January 26, 2005.

    2005 WI App 24
    (Also reported in 693 N.W.2d 138.)

      On behalf of the defendant-appellant,the cause was submitted on the brief of Brian M. Brejcha and Kathryn Sawyer Gutenkunst of Cramer, Multhauf & Hammes, LLP of Waukesha.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Christine M. Genthner of Jeffrey Leavell, S.C. of Racine.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   BROWN, J.

¶ 1. This is the first case that construes how comprehensive general liability policies should be interpreted as they apply to Wisconsin limited liability companies with respect to "Named Insured" language. We hold that when a clause in a standard CGL policy refers to a "manager" or "member" of a limited liability company, the signators to the insurance policy intend for those words to mean the same as they are defined pursuant to Wisconsin's limited liability company statute, Wis. Stat. § 183.0102 (2003-04), and are not defined according to the common usage found in a recognized dictionary. However, with respect to the term "real estate manager" in a CGL policy, when the term does not have "limited liability company" as its antecedent, the parties mean to use the most universal definition, and thus, we use a recognized dictionary to define it. Here, the plaintiff claimed that Ralph W. Raush was a de facto manager of MR Group, LLC. We hold that West Bend Mutual Insurance Company owes no coverage and no duty to defend Raush because there is no claim that he is either a manager or member of an LLC as those words are defined in our statutes or that he was acting as a real estate manager. We affirm the circuit court's dismissal of West Bend from this case.

¶ 2. On March 2, 2002, Damon L. Brown, Jr., a minor child, fell into a water-filled excavation site located on property in the city of Waukesha. The child drowned. His parents and his estate, administered by his mother, commenced a suit. The complaint named several defendants, including, among others: (1) MR Group, LLC, the owner of the real estate; (2) West Bend, MR Group's liability insurance carrier; (3) Michael Fohl, in both his individual capacity and as manager of MR Group; and (4) Ralph Raush, the appellant in this case, both in his individual capacity and doing business as several other named entities. The complaint alleged that Raush was a de facto manager of MR Group who financed the purchase of the excavation site and was involved in decision making related to the commercial development of the site with the intention that he would acquire the property for use by his own existing business after the completion of construction.

¶ 3. Raush cross-claimed against the other three defendants for contribution or indemnification if he should incur liability to the plaintiffs. West Bend successfully moved for summary judgment on the ground that it had no duty to defend or indemnify Raush. Raush appeals.

¶ 4. We review summary judgment motions independently, employing the same well-known methodology as the circuit court. See Doyle v. Engelke, 219 Wis. 2d 277, 283, 580 N.W.2d 245 (1998). We grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. See id.

¶ 5. An insurer has a duty to defend a suit whenever the complaint alleges facts that, if proven to be trae, would lead to the insurer's liability pursuant to an insurance policy. Id. at 284-85. In determining whether such a duty exists, we compare the factual allegations within the four corners of the complaint to the terms of the policy. Id. at 284. We construe the former liberally, drawing all reasonable inferences and resolving all doubts about the duty to defend in the insured's favor. See id.\ Elliott v. Donahue, 169 Wis. 2d 310, 321, 485 N.W.2d 403 (1992).

¶ 6. Our examination of the insurance policy requires our interpretation of its terms, a task that calls for our independent review. Danheck v. American Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150. Our construction aims to give effect to the intent of the parties to the agreement as they express it in the language of the policy, interpreting such language as a reasonable person in the position of the insured would understand it. Id. We give the words in the policy their common and ordinary meanings and may resort to recognized dictionaries to establish those meanings. See id., ¶ 15; Muehlenbein v. West Bend Mut. Ins. Co., 175 Wis. 2d 259, 265, 499 N.W.2d 233 (Ct. App. 1993). Where the language is plain and unambiguous, we go no further and enforce the terms as written. Danheck, 245 Wis. 2d 186, ¶ 10.

¶ 7. We will begin with the language in MR Group's insurance agreement with West Bend. We first note the declarations page of the agreement, which states that the insured is a limited liability company. The other pertinent parts of the policy read as follows:

SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply ....
SECTION II - WHO IS AN INSURED
1. If you are designated in the Declarations as:
c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers.
2. Each of the following is also an insured:
b. Any person (other than your "employee"), or any organization while acting as your real estate manager.

Thus, the policy makes clear that, as respects a limited liability company, it covers the named insured, its managers (with respect to their management duties) and members (with respect to the conduct of the named insured's business). The policy also covers real estate managers of the named insured. In order to be covered, Raush must qualify as a manager, a member, or a real estate manager of MR Group.

¶ 8. The policy contains no definition of any of these terms, but we conclude that their meanings are unambiguous. Wisconsin Stat. ch. 183, entitled, "LIMITED LIABILITY COMPANIES," clearly defines both "manager" and "member" with respect to such companies. " 'Manager'. . . means, with respect to a limited liability company that has set forth in its articles of organization that it is to be managed by one or more managers, the person or persons designated in accordance with s. 183.0401." Wis. Stat. § 183.0102(13). Section 183.0102(15) defines a "member" as "a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company."

¶ 9. Raush protests that it is inappropriate to consider statutory definitions of "manager" and "member" and urges us to rely on dictionary definitions for the terms' common meanings. We decline to do so. Although a dictionary definition ordinarily helps to ascertain the common and ordinary meaning of a term, Danbeck reveals that the real test is what a reasonable insured would understand the term to mean. See Danbeck, 245 Wis. 2d 186, ¶ 10.

¶ 10. We conclude that a reasonable insured that is a limited liability company would understand "manager" and "member" to mean "manager" and "member" as the terms are used with respect to limited liability companies. The relevant provision of the policy providing coverage for managers and members applies exclusively to limited liability companies. It does not deal with other sorts of business establishments commonly thought to have "managers" or "members." In addition, we must keep in mind that limited liability companies are statutory creatures. We expect that a reasonable insured would be familiar with statutory definitions of major players in its organizational structure and that references to such players would commonly be thought to allude to those particular definitions.

¶ 11. Significantly, the West Bend policy went into effect in February of 2002. Wisconsin Stat. ch. 183 and the statutory definitions in Wis. Stat. § 183.0102 became effective in 1993. Thus, these definitions have been operative since the relatively recent creation of limited liability companies. If any common and ordinary meaning of "manager" or "member" exists with respect to limited liability companies, it would be these statutory definitions that are as old as the oldest such company in Wisconsin.

¶ 12. Unlike "member" or "manager," no definition of "real estate manager" appears in Wis. Stat. ch. 183. We also note that the provision guaranteeing insurance coverage for "real estate managers" does not appear as part of the policy that references only limited liability companies. Thus, a definition generally applicable to several types of insureds is most likely what the parties intended.

¶ 13. Accordingly, we consult a dictionary to arrive at the common and ordinary meaning of the term. "Real estate" is defined as "property in buildings and land." Merriam-Webster's Collegiate Dictionary 973 (10th ed. 1997). "Manager" is defined, in pertinent part, as "one that manages: as a : a person who conducts business or household affairs b : a person whose work or profession is management." Id. at 706. From these definitions, we conclude that a "real estate manager" is one who manages the business affairs of certain real estate.

¶ 14. Not only does the complaint not allege that Raush qualifies as a "manager," a "member," or a "real estate manager" for MR Group, the factual allegations, even if true, do not suffice to show that Raush falls into any of these categories. The complaint states that Raush was a "de facto manager," that he financed the purchase of the property and planned to benefit from the construction thereon by acquiring the property later, and that he was "intimately and mutually involved with all decision-making" related to commercial development of the site, in conjunction with MR Group and Fohl, such that he was engaged in a joint venture or common plan and scheme with them. It also contains numerous allegations that like MR Group and Fohl, Raush knew or should have known about the dangerous conditions on the property and yet took no affirmative steps to rectify them.

¶ 15. Read most liberally, the complaint establishes that (1) Raush may be a liable codefendant; (2) he had a vested interest in MR Group's property; and (3) MR Group, Fohl, and Raush had extensive business dealings with respect to all phases of the property's development plans. None of these facts indicate that MR Group designated Raush as a manager in accordance with Wis. Stat. § 183.0401. This section makes clear that designation occurs either in the limited liability company's operating agreement or by a vote of the members. See § 183.0401(2). We do not see how such designation can be "de facto" — Raush is either named a manager in the operating agreement or he is not; either the members voted to make him a manager or they did not. Thus, whatever "de facto manager" means, one simply cannot reasonably infer that it comports with the statutory definition of "manager." See Wis. Stat. § 183.0102(13); Elliott, 169 Wis. 2d at 321-22; Doyle, 219 Wis. 2d at 284 (we draw all reasonable inferences in the nonmoving party's favor). Indeed, the complaint specifically names only Fohl as MR Group's manager.

¶ 16. Based on the complaint, Raush is also not a "member" or "real estate manager" as contemplated in the policy. The factual allegations do not show that MR Group has admitted Raush to membership in accordance with Wis. Stat. § 183.0801. See Wis. Stat. § 183.0102(15). Hence, he is not a "member." He is not a "real estate manager" because nothing in the complaint establishes that Raush was in the business of managing real estate affairs vis-á-vis the subject property. Deciding what sort of business activity to place on a piece of undeveloped real estate and being "mutually and intimately involved" with implementing such a plan is simply not within the realm of real estate management.

¶ 17. Raush attempts to create an issue of material fact by citing the circuit court's confusion over the definition of the term "de facto manager." He argues that because the circuit court admitted it did not know what the term meant, a genuine issue existed as to whether "de facto manager" came within the definition of "manager." Along the same lines, he contends that it was premature for the court to determine that West Bend had no duty to indemnify Raush. He first quotes language from the transcript of the summary judgment hearing in which the court recognizes that Raush may be liable to the plaintiffs. He then quotes the circuit court:

What de facto manager means in terms of the overall picture and the liability and the joint and several liability is ... definitely an issue that the Court can't decide on this basis, but at this point I find that we have made the decision that there is no coverage and other issues involving this policy and this claim will be litigated down the road.

Raush further quotes the following exchange wherein West Bend's attorney attempted to clarify the scope of the court's ruling:

Counsel: Your honor, just for consideration, you indicated specifically no duty to defend and used the term no coverage. Does that mean no duty to indemnify also?
The Court: Yeah, it does at this point; right.

He appears to argue that the circuit court should not have reached the issue of whether West Bend had a duty to indemnify when later facts could establish such a duty.

¶ 18. We reject Raush's argument. First, because we review summary judgment motions de novo, see Doyle, 219 Wis. 2d at 283, it does not matter what the circuit court decided. We have independently concluded that summary judgment was appropriate. Moreover, all the circuit court meant by the language Raush cites was that, based on the four corners of the complaint, there was no apparent duty to indemnify. Certainly, facts not included in a complaint sometimes emerge at trial, but the courts cannot consider on summary judgment facts not of record and not known to be in existence. We will not speculate about whether new facts will later reveal that West Bend has a duty to indemnify Raush. Raush may raise the issue if and when such facts materialize.

¶ 19. We hold that the four corners of the complaint do not allege facts that indicate West Bend may be liable to indemnify Raush. The complaint does not indicate whether Raush falls into any of the various categories of insureds named in the West Bend insurance policy. Hence, West Bend has no duty to defend the plaintiffs' suit against Raush. For that reason, we affirm the circuit court's grant of summary judgment for West Bend.

By the Court. — Judgment affirmed.

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


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Reginald R. Jones, Defendant-Respondent. [Case No. 03-3216-CR.] State of Wisconsin, Plaintiff-Appellant,† v. Maurice E. O'Neal, Defendant-Respondent. [Case No. 03-3217-CR.]
    Court of Appeals

      Nos. 03-3216-CR, 03-3217-CR.

      Submitted on briefs November 23, 2004.

    Decided January 26, 2005.

    2005 WI App 26
    (Also reported in 693 N.W.2d 104.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautensehlager, attorney general, and Sarah K. Larson, assistant attorney general.
    On behalf of the defendant-respondent, Reginald R. Jones, the cause was submitted on the brief of John P. Tedesco, assistant state public defender.
    On behalf of the defendant,Maurice E. O'Neal, the cause was submitted on the brief of Attorney Jess Martinez, of Waukesha.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 6-1-2005.

   NETTESHEIM, J.

¶ 1. The State of Wisconsin appeals from an order suppressing evidence obtained during a consent search of an automobile driven by Maurice E. O'Neal. The evidence recovered resulted in charges against O'Neal and the passenger in his vehicle, Reginald R. Jones. The issue in this case is whether O'Neal was seized within the meaning of the Fourth Amendment when he consented to the search. We conclude that he was and therefore his consent was invalid. We affirm the trial court order.

Background

¶ 2. The facts underlying the issue on appeal are not disputed. On April 9, 2003, at 1:49 a.m., Sheboygan County Sheriffs Deputy Brent Multer obtained a radar reading of a vehicle traveling in excess of the posted speed limit on Highway 1-43 in Sheboygan county. Multer pursued and stopped the vehicle. Multer advised the driver that he had been stopped for speeding, and he asked both the driver and the passenger for identification, which identified O'Neal as the driver and Jones as the passenger. Multer then asked where they were going. Jones responded that they were headed to Green Bay to visit his girlfriend. Multer asked how long they were planning to stay there and Jones first responded that they were going for a few days but later indicated that they were going for between a week and two weeks. Multer's initial exchange with O'Neal and Jones lasted approximately three to four minutes.

¶ 3. Multer returned to his vehicle to run checks on the identifications provided by O'Neal and Jones and the vehicle license plate. The checks did not reveal anything irregular or suspicious. Multer then wrote out a warning citation for O'Neal, but also called for backup assistance. Multer then returned to the O'Neal vehicle and requested O'Neal to accompany him to the rear of the vehicle. O'Neal complied, and Multer explained the warning citation to him. At this point, Deputy Brad Abel arrived as backup; however, he did not say anything to either Jones or O'Neal. Multer then returned both identification cards to O'Neal. Jones remained seated in the car during this exchange.

¶ 4. Once he had returned the identification cards, Multer asked O'Neal if he had any further questions regarding the citation and O'Neal indicated that he did not. Less than a few seconds later, Multer asked O'Neal whether there was anything illegal in the vehicle. O'Neal responded that there was nothing illegal in the vehicle, whereupon Multer asked if O'Neal would mind if he searched the vehicle. This process is known as a "Badger" — a police interdiction technique by which the officer attempts to obtain the person's consent to a search even though the officer has no legal basis to further detain the person. See State v. Williams, 2002 WI 94, ¶¶ 7, 43, 255 Wis. 2d 1, 646 N.W.2d 834. In response to Multer's request to search the vehicle, O'Neal responded, "No, go ahead." The search uncovered a semiautomatic handgun under the front passenger seat and cocaine under the hood of the vehicle. O'Neal and Jones were placed under arrest.

¶ 5. The State charged both Jones and O'Neal with possession with intent to deliver cocaine as a party to the crime pursuant to Wis. Stat. §§ 961.41(lm)(cm)4. and 939.05 (2003-04). In addition, the State charged Jones with carrying a concealed weapon pursuant to Wis. Stat. § 941.23, and charged O'Neal with knowingly keeping a vehicle for controlled substances use pursuant to Wis. Stat. § 961.42(1). These charges were repeated in the informations filed against O'Neal and Jones following their bindover at preliminary hearing.

¶ 6. O'Neal and Jones then moved for the suppression of the evidence found in the vehicle. Relying on the supreme court's decision in Williams, both O'Neal and Jones argued that O'Neal's consent to the search of his vehicle was invalid. Following a hearing and a consideration of the parties' briefs, the trial court issued a bench decision granting the motions to suppress. The court determined that under the totality of the circumstances, and particularly Multer's request that O'Neal step out of the vehicle and the contemporaneous arrival of the backup deputy, a reasonable person in O'Neal's position would not have felt free to leave once the traffic matter had been completed. Instead, the court concluded that a reasonable person would have felt compelled to remain and respond to Multer's follow-up request to search his vehicle. The State appeals.

Discussion

¶ 7. At the outset, we clarify the issue in this case. Neither O'Neal nor Jones challenges the legality of the initial stop of the vehicle. In addition, the trial court found, and neither party disputes, that the traffic stop had concluded prior to Multer's request to search O'Neal's vehicle. Therefore, the issue is narrowed to whether O'Neal was "seized" for purposes of the Fourth Amendment when he consented to the search of the vehicle.

¶ 8. "When a Fourth Amendment challenge is raised at the trial court level, the trial court considers the evidence, makes findings of evidentiary or historical fact, and then resolves the issue by applying constitutional principles to those historical facts." State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis. 2d 48, 613 N.W.2d 72. "On review, this court gives deference to the trial court's findings of evidentiary or historical fact, but determines the question of constitutional fact independently." Id. Thus, whether O'Neal was illegally seized at the time he gave his consent presents a question of constitutional fact which we review de novo. See Williams, 255 Wis. 2d 1, ¶ 17.

¶ 9. Warrantless searches are per se unreasonable under the Fourth Amendment. Id., ¶ 18. However, a search authorized by consent is wholly valid unless that consent is given while an individual is illegally seized. See id., ¶¶ 19-20. O'Neal and Jones contend that O'Neal was illegally seized at the time he gave his consent. Whether O'Neal was in fact seized for purposes of the Fourth Amendment requires the application of an objective test as to whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave." Id., ¶ 4 (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). "The general rule is that a seizure has occurred when an officer, 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen ....'" Williams, 255 Wis. 2d 1, ¶ 20 (citing Mendenhall, 446 U.S. at 552).

¶ 10. The Mendenhall test adopted by the Supreme Court is as follows:

[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Mendenhall, 446 U.S. at 554-55 (citations and footnote omitted).

¶ 11. The supreme court applied the reasonable person test in Williams. There, Williams was stopped for speeding on 1-94. Williams, 255 Wis. 2d 1, ¶ 2. The state trooper conducting the stop employed a "Badger." (See supra at ¶ 4). The trooper called for backup assistance, issued a warning citation, returned Williams' driver's license and other paperwork, said "[we]'ll let you get on your way then," shook hands, and headed back to his squad car. Williams, 255 Wis. 2d 1, ¶¶ 7-12. After a step or two, the trooper abruptly turned around and began questioning Williams about whether he had any guns, knives, drugs, or large amounts of money in the car, and asked for permission to search. Id., ¶ 12. Williams denied having any of the items in question and gave consent to search. Id.

¶ 12. Noting that "questioning alone does not a seizure make, and the fact that this defendant... spontaneously and voluntarily responded to the officer's questions is not enough to transform an otherwise consensual exchange into an illegal seizure," the court concluded that a reasonable person in Williams' position would have felt free to decline to answer the officer's questions and simply "get on [his] way." Id., ¶ 28 (citation omitted).

¶ 13. In so holding, the Williams court stated that the fact that the officer "had just invited Williams to 'get on [his] way' strongly influences our conclusion." Id., ¶ 29.

The officer's words and actions, considered as a whole, communicated permission to leave, as the traffic stop was over. The officer did nothing, verbally or physically, to compel Williams to stay. That Williams stayed, and answered the questions, and gave consent to search, is not constitutionally suspect, and does not give rise to an inference that he must have been compelled to do so.

Id.

¶ 14. The Williams court rejected the court of appeals' conclusion that the tone, tenor and rapidity of the officer's questions; the presence and stance of the backup officer, whose squad lights were still flashing; the location; and the time of night combined to constitute a seizure. Id., ¶ 30. Instead, the Williams court concluded that the change in tone and tenor of the officer's voice was not so significant that the officer's questions took on the character of an official command compelling compliance. Id., ¶ 31. The court also concluded that the presence and behavior of the backup officer, who did not display a weapon or physically touch Williams, was not so intimidating as to convert the exchange into a seizure. Id., ¶ 32. Finally, the court determined that the presence of emergency lights was not significant and neither the time (2:30 a.m.) nor the location (a rural stretch of highway) contributed to a coercive atmosphere. Id., ¶¶ 33-34.

¶ 15. This case has obvious similarities to Williams. In both cases, the defendants were stopped for routine traffic violations, both officers employed a "Badger" technique, and both drivers complied with the officer's request to step out of the vehicle and move to the rear bumper area where the officer issued a warning citation. See id., ¶ 9. In addition, two squad cars, at least one with emergency lights activated, and a backup deputy were present in each case. See id., ¶ 8.

¶ 16. However, the cases differ in one important aspect — a difference correctly noted by the trial court in this case. In Williams, the officer told Williams, "This is a warning for speeding, need a signature and we'll get you on your way then." Id., ¶ 9. The officer handed the citation to Williams and asked if he had any questions, to which Williams responded that he did not. Id., ¶ 11. The officer then stated, "Good, we'll let you get on your way then okay." Id. Williams and the officer shook hands and both took a step or two back to their vehicles before the officer asked Williams if he had any illegal items in his vehicle. Id., ¶ 12. While in this case, Multer handed O'Neal the warning and returned the identifications, Multer never advised O'Neal that he was free to leave. Nor did Multer engage in any physical exchange with O'Neal, such as a handshake or other gesture, conveying the idea that O'Neal was free to leave.

¶ 17. As noted above, the officer's invitation to Williams to "get on [his] way" strongly influenced the supreme court's conclusion. Id., ¶ 29. While we agree with the State that the supreme court did not establish a bright-line rule that an officer must say "have a nice day" or shake hands with an individual in order for an ensuing encounter to be consensual, it is clear that the court saw those facts as sufficient to tip the scale in favor of a finding that the subsequent encounter was consensual. We therefore read Williams to require some verbal or physical demonstration by the officer, or some other equivalent facts, which clearly convey to the person that the traffic matter is concluded and that the person should be on his or her way. Absent that, it is a legal fiction to conclude that a reasonable person would deduce, infer or believe that he or she is free to depart the scene.

¶ 18. In this case, Multer started down this path, but he did not complete the journey. Multer's issuance of the warning citation and the return of the identifications suggested finality to the matter, but within a few seconds thereafter, Multer put an accusatory question to O'Neal, inquiring whether anything illegal was in the vehicle, followed by his request to search the vehicle. Thus, there was no significant demarcation between the conclusion of the traffic matter and Multer's attempt to obtain O'Neal's consent to a search of the vehicle. Instead, the two matters were seamlessly woven together, which, as demonstrated in Williams, is the very purpose of the "Badger" technique.

¶ 19. Here, the trial court determined that a reasonable person in O'Neal's position would have felt compelled to stay and answer Multer's questions. The court expressly considered all of the underlying facts, noting the importance that the Williams court gave to the verbal exchange between the officer and Williams and further noting that no such equivalent evidence existed in this case.

¶ 20. The State argues that the trial court improperly considered Multer's request that O'Neal exit the vehicle because it occurred prior to the conclusion of the traffic stop. See Williams, 255 Wis. 2d 1, ¶ 27 (proper focus of analysis is on the events at the conclusion of the initial seizure and immediately thereafter). Given the proximity in time between the officer's request that O'Neal exit the vehicle, the arrival of the backup deputy and the request to search, we do not view the trial court's consideration of these facts as improper. We fail to comprehend how the trial court's consideration of this fact runs afoul of its obligation to consider "all of the circumstances surrounding the incident." See Mendenhall, 446 U.S. at 554 (a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave).

¶ 21. Under the totality of the circumstances, we conclude that a reasonable person in O'Neal's position would not have believed that he or she was free to leave. As stated above, the circumstances underlying O'Neal's consent are very similar to those in Williams. While the Williams court did not view the tenor of the questioning, the presence of the backup officer, emergency lights, location and time of night as combining to constitute a seizure, Williams, 255 Wis. 2d 1, ¶¶ 30-34, it arrived at that conclusion after expressly stating that the fact "[t]hat the officer had just invited Williams to 'get on [his] way'" strongly influenced its decision, id., ¶ 29. The Williams court concluded that "[t]he officer's words and actions, considered as a whole, communicated permission to leave . ..." Id.

¶ 22. Here, Multer did not sufficiently communicate permission to leave either by word or action. We conclude, as did the trial court, that the absence of that fact from the surrounding circumstances results in a combination of factors that would have led a reasonable person to believe that he or she was not free to leave. Multer asked O'Neal to exit the vehicle, a backup officer was present and standing in front of Multer's squad car during the exchange, at least one squad had its emergency lights activated, and less than a few seconds elapsed between Multer's issuance of a warning and his inquiry regarding illegal items. During that time, Mul-ter never gave any indication that O'Neal was free to leave, either in word or action. Given the seamless transition between the conclusion of the traffic aspects of this case and Multer's accusatory question whether there was anything illegal in the vehicle and his request to search the vehicle, we conclude that a reasonable person would not believe that he or she was free to depart the scene. In light of Williams and the particular facts of this case, we conclude that O'Neal was seized for purposes of the Fourth Amendment when he consented to the search of his vehicle.

Conclusion

¶ 23. We conclude that, in view of all of the circumstances surrounding O'Neal's consent, a reasonable person would not have felt free to ignore Multer's questions and request to search the vehicle. Because O'Neal was seized for purposes of the Fourth Amendment at the time he gave consent for the search of his vehicle, his consent was invalid. We therefore affirm the trial court's order granting O'Neal's and Jones' motions to suppress evidence obtained during the search.

By the Court. — Order affirmed.

       On December 22, 2003, this court granted the State's motion to consolidate the appeals.

       There were two young children, ages nine months and eighteen months, asleep in the backseat of the vehicle.

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

       We are satisfied that Multer's issuance of the warning citation to O'Neal and Multer's return of O'Neal's and Jones' identification cards support the parties' and the trial court's conclusion that the traffic stop had ended prior to O'Neal's consent. In State v. Williams, 2002 WI 94, ¶ 26, 255 Wis. 2d 1, 646 N.W.2d 834, the court determined:
      It is quite clear based upon the established evidentiary facts in this case that the traffic stop had concluded before [Officer] Fetherston questioned Williams about contraband in the car and asked for permission to search. Fetherston told Williams he would be free to go after he signed the warning citation; Williams did so, and the citation was handed to him. Fetherston had already returned Williams' driver's license and rental papers. Fetherston said, unequivocally, "[w]e'll let you get on your way then okay." Fetherston and Williams shook hands and exchanged common parting pleasantries ("have a good day" and "take care, we'll see you"), and turned away from each other, at least momentarily.
      Although the determination in Williams suggests that a handshake or parting statements are factors to be considered in whether a traffic stop has concluded, there is case law holding that a traffic stop is concluded when the driver has received his or her citation and driver's license. See United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) ("A traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority."). Therefore, this case does not involve a question of whether Multer impermissibly exceeded the scope of an ongoing traffic stop. See State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) (officer had not issued citation at the time request to search was made). While the State's assertion that this is a Williams case relies on the trial court's determination that the traffic stop had concluded, the analysis employed in Williams is not so simplistic. Rather, the analysis focuses on how a reasonable person would react under the totality of the circumstances. Williams, 255 Wis. 2d 1, ¶ 4.

        Also on this matter, we note that although Jones and O'Neal agree with the trial court's determination that the traffic stop had concluded and a second seizure occurred, their arguments differ. Jones contends that the transition from traffic stop to consensual encounter was so "seamless" that it would be imperceptible to a reasonable person and as such, a reasonable person would not have felt free to leave the scene. O'Neal argues that the traffic stop had completed and the officer then lacked reasonable suspicion to seize O'Neal. However, O'Neal overlooks that the State does not argue that reasonable suspicion justified Multer's actions. Rather, the State contends that the traffic stop had concluded and that, pursuant to Williams, a reasonable person in O'Neal's situation would have believed he or she was free to leave the scene. We therefore analyze this case under the approach taken by Jones and the State.

       We note that the State mischaracterizes the trial court ruling as finding that the officer's statement in Williams that Williams could "get on his way" was dispositive. However, a review of the trial court's decision indicates that the trial court considered "all of the circumstances" before noting in the language cited by the State that "[t]his is the Williams case with an important factual distinction. In Williams the Supreme Court was strongly influenced by invitation of the officer to Williams to get on his way. No similar communication was given to O'Neal. The consent was invalid. The search was nonconsen-sual." That the trial court considered the absence of such a statement to be significant in its consideration of the totality of the circumstances is not surprising in light of the supreme court's statement in Williams that the officer's statement "strongly influence[d]" its decision. See Williams, 255 Wis. 2d 1, ¶ 29.

       The State argues that the trial court impermissibly focused on O'Neal's subjective belief as to whether he was free to leave. The State cites to the trial court's statement that, "Mr. O'Neal didn't know under the totality of the circumstances that he could decline and leave the scene." However, immediately following this statement, the trial court states the proper objective inquiry, "The reasonable person would have felt compelled to stay and answer." The trial court later repeated the correct inquiry, stating, "Here's the issue: Would a reasonable person in this circumstance feel compelled to stay and answer? This Court answers yes, considering all of the circumstances ...." We reject the State's contention that the trial court improperly applied a subjective analysis.


author: SNYDER, J.

text:
    Christina Bellon, Plaintiff-Appellant, v. Ripon College, Defendant-Respondent.
    Court of Appeals

      No. 04-0515.

      Submitted on briefs November 23, 2004.

    Decided January 26, 2005.

    2005 WI App 29
    (Also reported in 693 N.W.2d 330.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Tamara B. Packard and Lester A. Pines of Cullen, Weston, Pines & Bach, LLP, Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Shannon M. Trevithick of Britton & Associates, S.C., Milwaukee.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Christina Bellon appeals from an order dismissing all four of her causes of action against Ripon College. Bellon claims Ripon engaged in three acts of common law misrepresentation to induce employment and one act of misrepresentation in violation of Wis. Stat. § 103.43 (2003-04). She contends that issues of material fact exist from which a jury could find misrepresentation; therefore, summary judgment dismissing her claims was inappropriate. She further contends that the circuit court's determination that she is not protected by § 103.43 was error. We disagree and affirm the order of the circuit court.

BACKGROUND

¶ 2. In fall 1999, Bellon read an advertisement for a tenure track faculty position at Ripon College. On January 31, 2000, she met with David Seligman, Ripon's vice president and dean of faculty at the time, to interview for the position. During her interview, Bellon asked about Ripon's financial condition. In response to her questions, Seligman described Ripon's endowment, discussed past and current student enrollments, and told Bellon that one of the goals of Ripon's comprehensive plan was to raise faculty salaries to be more competitive with comparable institutions.

¶ 3. On March 3, 2000, Ripon offered Bellon a position as assistant professor of philosophy. Four days later, the University of Nevada-Las Vegas offered Bellon a similar position with a higher salary. On March 28, Bellon accepted Ripon's offer and continued to negotiate salary and employment-related expenses. Bellon taught for Ripon during the 2000-01 academic year, and in May 2001, she accepted an offer for continued employment through the 2001-02 academic year. Ripon notified Bellon in August 2001 that budget circumstances required Ripon's Board of Trustees to eliminate her position and that her employment with Ripon would terminate at the end of the 2001-02 year.

¶ 4. On June 24, 2002, Bellon filed suit against Ripon alleging fraudulent advertising contrary to Wis. Stat. § 103.43, as well as three types of misrepresentation: intentional, negligent and strict liability. She claimed special damages in the amount of $24,398.45, plus attorney fees. Ripon filed a motion for summary judgment, and a hearing was held on December 12, 2003. The circuit court granted Ripon's motion as to all causes of action and dismissed Bellon's complaint with prejudice. Bellon appeals.

DISCUSSION

¶ 5. Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). We will reverse a decision granting summary judgment if either (1) the trial court incorrectly decided legal issues, or (2) material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). When reviewing a summary judgment, we employ the same methodology as the circuit court and our review is de novo. Gross v. Woodman's Food Mkt., Inc., 2002 WI App 295, ¶ 30, 259 Wis. 2d 181, 655 N.W.2d 718, review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (No. 01-1746). Where the complaint states a claim for relief and the answer joins issue, we then look to the affidavits to determine whether there are any issues of material fact that would entitle the opposing party to a trial. Id. Any reasonable doubt as to the existence of a factual issue must be resolved against the party moving for summary judgment. Maynard v. Port Publ'ns, Inc., 98 Wis. 2d 555, 563, 297 N.W.2d 500 (1980).

¶ 6. Wisconsin recognizes misrepresentation to commence an employment relationship as an actionable claim. See Mackenzie v. Miller Brewing Co., 2001 WI 23, ¶ 18 n.15, 241 Wis. 2d 700, 623 N.W.2d 739. A species of fraud, misrepresentation may take one of three familiar tort classifications: intentional, negligent, and strict responsibility. Whipp v. Iverson, 43 Wis. 2d 166, 169, 168 N.W.2d 201 (1969). All three forms of misrepresentation require the claimant to show that the defendant made a representation of fact that was untrue and that the plaintiff believed the representation to be true and detrimentally relied upon it. Lewis v. Paul Revere Life Ins. Co., 80 F. Supp. 2d 978, 995 (E.D. Wis. 2000). The unique elements of each claim are discussed at length in Grube v. Daun, 173 Wis. 2d 30, 54-55, 496 N.W.2d 106 (Ct. App. 1992), but we need not address them here.

¶ 7. Bellon argues that summary judgment was inappropriate here because a reasonable jury could have determined that Ripon made material misrepresentations on at least four topics: (1) Ripon's endowment, (2) student enrollment, (3) faculty salaries, and (4) Ripon's overall financial stability. Bellon contends that Ripon "led [her] down a garden path in order to induce her to accept a faculty position with the College." She concludes that "Ripon's misrepresentations denied [her] the freedom to make an informed choice and she was damaged by that process."

¶ 8. Ripon responds that the burden Bellon wishes to place on prospective employers is unreasonable. It asserts that it provided truthful answers to Bellon's questions regarding the college's endowment, enrollments, faculty salaries, and the general financial condition of Ripon at that time. Ripon disputes that it had a duty to predict unforeseeable market fluctuations, capital campaign results, or other future events; moreover, it disputes that it had a duty to predict whether Bellon's position would be eliminated in the future. Ripon concludes that there was no misrepresentation of the terms and conditions of employment: Bellon was hired to teach philosophy, which she did for two years at a negotiated salary.

¶ 9. Our review of the record demonstrates that Ripon told Bellon the actual value of the endowment, and the actual student enrollment figures and trends as of the time of Bellon's interview with Seligman. Further, we observe that Seligman showed Bellon the faculty salary handbook which contained the current salary charts and told her that a goal of Ripon's comprehensive plan was to increase faculty salaries by four to five percent each year until salaries were comparable to those at similar institutions. All of this information was true at the time of the interview.

¶ 10. Bellon contends that Ripon had a duty to say more. Her claim rests on a concept once described as "passive fraud" and more commonly known as "misrepresentation by nondisclosure." See Lecic v. The Lane Co., 104 Wis. 2d 592, 603, 312 N.W.2d 773 (1981). "The general rule is that silence, a failure to disclose a fact, is not misrepresentation unless the nondisclosing party has a duty to disclose that fact." Id. at 604. Here, however, Bellon seeks to impose a duty on Ripon to supply predictions, not facts. As we have held in the past, predictions as to future economic events are not generally actionable misrepresentations. Cf. Loula v. Snap-On Tools Corp., 175 Wis. 2d 50, 54, 498 N.W.2d 866 (Ct. App. 1993) (a party has no right to rely on statements of value and predictions of profits). It would be illogical to hold that failure to predict the future constitutes misrepresentation. The record demonstrates that Bellon's teaching position, along with others, was eliminated due to unforeseen economic circumstances. Ripon had no duty to predict future economic realities.

¶ 11. Bellon also contends that Ripon's nondisclosure of certain past events prevented her from predicting future economic events. She states that had she received more information about Ripon's financial situation during her interview with Seligman, she would have "considered [Ripon's] offer with a fair sense of how much risk there was that the College would eliminate her position." Nonetheless, Bellon acknowledges that Seligman provided accurate numbers in response to her questions about the endowment, enrollments, and faculty salaries. She further acknowledges that Seligman told her that the endowment was sizeable but not as large as others, that current faculty salaries were comparably low but there were plans to raise them, and that enrollments fluctuate. Bellon suggests that Ripon should have provided information about the college’s budget deficit, withdrawals from the endowment over the preceding nine years, dependence on enrollment levels, and enrollments over the past ten years. We conclude that Ripon had no such duty.

¶ 12. Bellon also contends that the circuit court improperly restricted the scope of Wxs. Stat. § 103.43 to manual laborers only. She contends that the language of the statute requires broader application. The statute states in relevant part: Sec. 103.43(l)(a), (b). Bellon contends that the plain language of the statute, which applies to workers "of any class or calling," clearly encompasses all people who work. This is not the interpretation embraced by our supreme court in Biersach & Neidermeyer Co. v. State, 177 Wis. 388, 188 N.W 650 (1922). There, the State prosecuted Biersach under the predecessor statute, Wis. Stat. § 1729p - 1 (1919). Biersach had advertised for tinners and had failed to include a notice that there was a strike at the Biersach plant. Biersach, 177 Wis. at 389. Biersach challenged the constitutionality of the statute, arguing that it violated the Fourteenth Amendment and was impermissible "class legislation" because the law applied only to manual laborers and therefore did not restrain employers of other workers such as stenographers or clerks. Id. at 390. The court confirmed that the statute was intended to apply to manual laborers, particularly those in industrial labor, and upheld the statute as constitutional. Id. at 390, 393. Our supreme court's holding is dispositive. See State v. Olsen, 99 Wis. 2d 572, 583, 299 N.W.2d 632 (Ct. App. 1980) (supreme court decisions are binding on the court of appeals).

(l)(a) No person may influence, induce, persuade or attempt to influence, induce, persuade or engage a worker ... to accept employment in this state, and no person may bring a worker of any class or calling into this state to work in any department of labor in this state, through or by means of any false or deceptive representations, false advertising or false pretenses concerning or arising from any of the following:
1. The kind and character of the work to be done.
2. The amount and character of the compensation to be paid for work.
3. The sanitary or other conditions of the employment.
4. The failure to state in any advertisement, proposal or contract for the employment that there is a strike or lockout at the place of the proposed employment, when a strike or lockout then actually exists in the employment at the proposed place of employment.
(b) Any of the acts described in par. (a) shall be considered a false advertisement or misrepresentation for the purposes of this section.

CONCLUSION

¶ 13. We hold that Bellon has failed to state any actionable claim for misrepresentation against Ripon College. We further hold that, in accordance with our supreme court's ruling, Wis. Stat. § 103.43 applies to manual laborers and cannot form the basis for Bellon's claim. We conclude that the circuit court properly granted summary judgment to Ripon College.

By the Court. — Order affirmed.

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

       Bellon argues, for example, that when Seligman told her of the plan to increase faculty salaries by four to five percent each year, he had a duty to tell her that a similar provision had failed in 1998 and 1999.

       Bellon's handwritten notes from her conversation with Seligman state "general increase in salary hasn't been approved yet" and indicate that she understood she would be notified if the board approved a four and one-half percent salary increase.


author: ANDERSON, PJ.

text:
    Jacquelyn Peronto and Daniel Peronto, Plaintiffs-Appellants, Zurich American Insurance Company and Primax Recoveries, Inc., Involuntary-Plaintiffs, v. Case Corporation, Defendant-Respondent, ABC Insurance Company, Defendant.
    Court of Appeals

      No. 04-0846.

      Submitted on briefs December 15, 2004.

    Decided January 26, 2005.

    2005 WI App 32
    (Also reported in 693 N.W.2d 133.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Charles David Schmidt of Cannon & Dunphy, S.C., Brookfield.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Ralph A. Weber and Beth Ermatinger Hanan of Gass Weber Mullins LLC, Milwaukee.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   ANDERSON, PJ.

¶ 1. The sole issue in this case is whether Wis. Stat. § 102.29(6) (2003-04) bars Jacquelyn and Daniel Peronto from recovering damages in this negligence action against Case Corporation because Jacquelyn was an employee of a "temporary help agency" at the time of her accident. We hold that Jacquelyn's employer, Compass Group USA, Inc., did not place her with Case, Case did not control her work activities and Case did not compensate Compass for Jacquelyn's services. Accordingly, we hold that Jacquelyn was not employed by a "temporary help agency" and § 102.29(6) does not preclude her recovery. We reverse the circuit court's grant of summary judgment in favor of Case and remand for proceedings consistent with this opinion.

FACTS

¶ 2. In March 2000, Jacquelyn was an employee of the Eurest Dining Services Division of Compass, a food and hospitality service contractor. At that time, Compass was under contract with Case to provide catering and vending services for Case's Racine facilities. Jacquelyn was among the Compass employees providing these services.

¶ 3. The pertinent portions of the parties' agreement are as follows:

It is mutually understood and agreed, and it is the intent of the parties that an independent contractor relationship be and is hereby established under the terms and conditions of this Agreement; that employees of Compass are not nor shall be deemed to be employees of [Case]; and, that employees of [Case] are not nor shall they be deemed to be employees of Compass.
Compass shall hire all employees necessary for the performance of this Agreement.
[Case] further agrees that Compass' facilities and services, as well as the food prepared by Compass, shall at times be subject to inspection by an authorized, capable person or persons designated by [Case]. Compass agrees that its employees and agents shall comply with and observe all applicable rules and regulations concerning conduct on the Premises which [Case] imposes upon [Case's] employees and agents.

The agreement also states that Case would pay Compass a management fee and reimburse Compass for its "costs of business," including, but not limited to, the costs of all labor performing services (wages, salaries, vacation pay, worker's compensation premiums or costs, etc.), products and supplies, indirect overhead, and all other operating expenses.

¶ 4. Compass paid Jacquelyn, trained her, set her hours and approved her vacations and sick time, disciplined her and assigned her to specific facilities at Case. Jacquelyn reported to a Compass supervisor, was assigned daily tasks by a Compass supervisor, requested new supplies and maintenance from her Compass supervisor, prepared meals from a Compass recipe list and served meals when Compass instructed. Case provided Jacquelyn with an identification card and building keys. Case also provided Jacquelyn with the equipment she used. When Case facilities were closed due to plant shutdowns or holidays, Jacquelyn's schedule would change. According to Jacquelyn, she also had rare contact with a Case supervisor. Jacquelyn worked with Case employees to promote use of the on-site cafeterias through theme days and menu items. The cafeteria Jacquelyn worked in was subject to inspection by Case employees.

¶ 5. On March 24, while walking to one of Case's cafeterias, Jacquelyn fell up to her waist through an allegedly improperly covered storm grate. As a result of the fall, Jacquelyn suffered severe injuries to her left ankle and right knee. Jacquelyn filed a worker's compensation claim with Compass's insurer, Zurich American Insurance Company, and has received benefits stemming from that claim.

¶ 6. In March 2003, Jacquelyn and her husband, Daniel, filed the present negligence action against Case. In October, Case responded with a motion for summary judgment. Case claimed immunity pursuant to the exclusive remedy provision in Wis. Stat. § 102.29(6), which, under certain circumstances, limits the recovery of employees of temporary help agencies to their worker's compensation benefits. The circuit court walked through the three-part test for determining whether an employer is a "temporary help agency" under the worker's compensation statute, determined that Compass satisfied that test and granted Case's motion for summary judgment. Jacquelyn appeals from that judgment.

STANDARD OF REVIEW

¶ 7. The standard of review following a grant of summary judgment is well known and need not be repeated here. See Wis. Stat. § 802.08(2); Mullen v. Walczak, 2003 WI 75, ¶ 11,262 Wis. 2d 708, 664 N.W.2d 76. Our review is de novo. Mullen, 262 Wis. 2d 708, ¶ 11. This case involves the interpretation and application of two statutes, both of which present a question of law subject to this court's independent review. See State v. Franklin, 2004 WI 38, ¶ 5, 270 Wis. 2d 271, 677 N.W.2d 276.

DISCUSSION

¶ 8. The question on appeal is whether the temporary help agency provisions of the Worker's Compensation Act bar the Perontos' claims against Case. Wisconsin Stat. § 102.29(6) provides: "No employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary help agency for the employee's services." Thus, in order for Case to be immune from tort liability under § 102.29(6), Compass must be considered a "temporary help agency," which is defined in Wis. Stat. § 102.01(2)(f).

¶ 9. A "temporary help agency" is not limited under the statutes to an employer, such as Kelly Services or Manpower, Inc., who is in the business of placing its employees with another employer. Gansch v. Nekoosa Papers, Inc., 158 Wis. 2d 743, 748-49, 463 N.W.2d 682 (1990). Instead, under the statute, a "temporary help agency" has the following characteristics: (1) an employer who places its employee with a second employer, (2) the second employer controls the employee's work activities, and (3) the second employer compensates the first employer for the employee's services. Wis. Stat. § 102.01(2)(f); Kaelber Plumbing & Heating v. LIRC, 160 Wis. 2d 342, 351-52, 465 N.W.2d 829 (Ct. App. 1991). We apply each factor to the relationship between Case and Compass in seriatim.

Placement

¶ 10. Jacquelyn asserts that Compass did not "place" her with Case. She points out that her work duties directly assisted Compass in fulfilling its own contractual obligation with Case and maintains that simply because she was physically working at a Case facility while she performed those duties does not mean that Compass had placed her with Case for purposes of the temporary help agency definition. We agree.

¶ 11. The placement element of Wis. Stat. § 102.01(2)(f) turns not on the physical proximity of the employee to an employer, but rather upon the purpose of the employee's work. In other words, "placement" is a matter of whose work the employee is performing, not where the work is being performed. Contrary to Case's assertions, this understanding of the placement requirement neither adds words to the statute nor frustrates the statute's purpose. See Wis. Stat. § 102.29(1) (the Worker's Compensation Act's exclusive remedy provision does not apply to third-party tortfeasors); Nelson v. Rothering, 174 Wis. 2d 296, 302, 496 N.W.2d 87 (1993) (noting that the purpose of the Worker's Compensation Act was to protect workers and their employers, not to extend immunity to third parties).

¶ 12. Case and Compass had a contractual arrangement that left the details of how to fulfill that contract to Compass. Compass maintained exclusive control over the day-to-day operations of the catering and vending services, including the employees. The purpose of Jacquelyn's work was to assist Compass in fulfilling its contractual obligations — to plan meals, prepare meals, serve meals and clean up after meals. Her activities at the Case facility had only an incidental benefit to Case — well-fed employees. Thus, while Jacquelyn worked at Case facilities, she did not work for Case. Indeed, the parties' agreement specifically stated more than once that Compass employees were not, under any circumstances, to be deemed employees of Case. Therefore, Compass did not "place" her with Case for purposes of Wis. Stat. § 102.01(2)(f).

Control

¶ 13. Jacquelyn next asserts that Case did not "control" her work activities. She points us to Labor and Industry Review Commission decisions in which the commission stated that the control element of Wis. Stat. § 102.01(2)(f) requires some evidence of compulsion or specific direction concerning the employee's daily activities. She urges us to adopt this standard and contends that no such evidence of compulsion or specific direction exists in this case.

¶ 14. We recognize that we are not bound by commission decisions from other cases; however, we agree with Jacquelyn that the commission's standard as to the level of control necessary to satisfy the control element of the temporary help agency definition is the proper standard. The previous cases addressing the scope of the statutory formulation of the control requirement teach us that the special or borrowing employer need not have exclusive control over the work activities of the temporary or loaned employees; rather, the special employer need only have "some control" over the work activities of the temporary employees. See Kaelber, 160 Wis. 2d at 351-52 n.4; Gansch, 158 Wis. 2d at 753.

¶ 15. Case would have us interpret "some control" broadly to include any amount of authority or influence an employer might have over an employee over the course of his or her employment. However, every employer could be said to exert some minimal degree of control over nearly every employee of another employer that steps onto its premises. Therefore, for the control requirement to have any meaning whatsoever, it must require something more. This fact is reflected in each of the cases where courts have held the control of the special employer over the temporary employee to be sufficient. In each of those cases, the special employer provided specific directions to the temporary employee concerning the employee's day-to-day work activities, i.e., precisely what work was to be performed, when it was to be performed and how it was to be performed. Gansch, 158 Wis. 2d at 754 (Gansch reported to the paper mill's foreman each morning and the foreman instructed him about his duties each day); Kaelber, 160 Wis. 2d at 349 (loaned employee was given directions on a daily basis by Kaelber employees as to where to lay sewer pipe and dig trenches, including the location, direction and depth of the trenches); Kopfhamer v. Madison Gas and Elec. Co., 2002 WI App 266, ¶ 22, 258 Wis. 2d 359, 654 N.W.2d 256 (agreement provided that the special employer would assign specific tasks to the temporary employees and would "in all respects direct and control such Employees in their performance of the assigned tasks"). With these cases in mind, we, like the commission, conclude that the control element requires some degree of compulsion or specific directions concerning the employee's daily activities.

¶ 16. Applying this standard to the facts of record, we conclude that Case's supervision of Jacquelyn was not sufficient to constitute control of her work activities under Wis. Stat. § 102.01(2)(f). Jacquelyn reported to a Compass supervisor; she only had rare contact with a Case supervisor. Her Compass supervisor told her when to serve the meals, what meals to serve and when to clean. Her Compass supervisor primarily handled her maintenance and new supplies requests. Although Jacquelyn's schedule coincided with Case's plant shutdowns or holidays and she had an identification card and building keys, it was her Compass supervisor who set her hours; he was the one who told her when to arrive in the morning and when she could leave in the afternoon. It was her Compass supervisor who authorized her vacations and sick time.

¶ 17. Furthermore, while the contract between Case and Compass provided that Compass employees would be subject to Case rules and regulations, there is no evidence that these rules and regulations were pertinent to Jacquelyn or her job performance. Jacquelyn was trained by Compass and it was her Compass supervisor who was responsible for disciplining her when necessary.

¶ 18. Thus, Compass exercised near complete control over Jacquelyn's daily work activities. While Jacquelyn may have used Case equipment, may have worked at times with Case employees to select menu items for catered events and other cafeteria functions, and may have been periodically subject to Case's inspection, unlike Gansch, Kaelber, and Kopfhamer, there appears to have been little to no compulsion by Case on Jacquelyn. Case provided few, if any, directions as to what tasks she should be performing, when she should be performing them or how she should be performing them. As such, the control element of Wis. Stat. § 102.01(2)(f) is not satisfied.

Compensation

¶ 19. Finally, Jacquelyn is also correct in her argument that Case did not directly compensate Compass for her labor and therefore the compensation element is not met. In a footnote, Case briefly argues that the payment arrangement in this case is similar to the arrangement in Kopfhamer, where we upheld the temporary help agency defense. There, however, the special employer expressly contracted for the temporary employee to perform work activities under its own exclusive direction and control and the special employer thereby directly compensated the general employer for the temporary employee's labor. See Kopfhamer, 258 Wis. 2d 359, ¶¶ 22-23. Here, on the other hand, as we have explained, the contract between Compass and Case did not permit Case to control how Compass would fulfill its obligations; Compass retained exclusive control over the day-to-day operations of the cafeteria and vending services, including the work activities and payment of its employees. Thus, when Case paid Compass under the contract, it was paying for the end product — the cafeteria and vending services — and not specifically for the labor of the individual employees like Jacquelyn. The compensation element then is not satisfied.

CONCLUSION

¶ 20. We conclude that Compass did not place Jacquelyn with Case, Case did not control Jacquelyn's work activities and Case did not compensate Compass for Jacquelyn's labor. Thus, Compass is not a "temporary help agency" under Wis. Stat. § 102.01(2)(f), and Case is not entitled to immunity from tort liability under Wis. Stat. § 102.29(6). We reverse the decision of the circuit court and remand the case for further proceedings consistent with this opinion.

By the Court. — Judgment reversed and cause remanded.

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

        See, e.g., Connecticut Indem. Co. v. Liberty Mut. Ins. Co., No. 96013645, 1997 WL 151105, at *4 (Wis. Labor and Indus. Review Comm'n Mar. 25, 1997) (determining that the control element requires compulsion or specific directions that the employee must follow).


author: FER CURIAM.

text:
    Wisconsin Bell, Inc., (d/b/a Ameritech Wisconsin), a Wisconsin corporation, Petitioner-Respondent-Cross-Appellant-Petitioner, v. Public Service Commission of Wisconsin, Respondent-Appellant-Cross-Respondent, Sprint Telecommunications, Inc., Excel Telecommunications, Inc., and AT&T Communications of Wisconsin L.P., Co-Appellants-Cross-Respondents.
    Supreme Court

      No. 02-3163.

      Oral argument October 26, 2004.

    Decided March 17, 2005.

    2005 WI 23
    (Also reported in 693 N.W.2d 301.)

      For the petitioner-respondent-cross-appellant-petitioner there were briefs by John E. Flanagan, Jordan J. Hemaidan and Michael Best & Friedrich, LLP, Madison, and oral argument by John E. Flanagan.

    For the respondent-appellant-cross-respondent there was a brief by Diane M. Ramthun, Steven Levine and the Public Service Commission of Wisconsin, Madison, and oral argument by Diane M. Ramthun.

    For the co-appellants-cross-respondents there was a brief by Peter L. Gordon, Stephen J. Liccione and Reinhart Boerner Van Deuren, S.C., Madison (on behalf of Excel Telecommunications and Sprint Communications, Inc., L.E); and by Arthur J. LeVasseur and Fischer, Franklin & Ford, Detroit, MI (on behalf of AT&T Communications of Wisconsin, L.E), and oral argument by Stephen J. Liccione.

       Motion for Reconsideration denied 6-23-2005.

   FER CURIAM.

¶ 1. The court is equally divided on the question of whether the published decision of the court of appeals, Wisconsin Bell, Inc. v. Public Service Commission of Wisconsin, 2004 WI App 8, 269 Wis. 2d 409, 675 N.W.2d 242, should be affirmed or reversed. JUSTICE ANN WALSH BRADLEY, JUSTICE DAVID T. PROSSER, and JUSTICE LOUIS B. BUTLER, JR. would affirm; JUSTICE JON R WILCOX, JUSTICE N. PATRICK CROOKS, and JUSTICE PATIENCE D. ROGGENSACK would reverse. CHIEF JUSTICE SHIRLEY S. ABRAHAMSON did not participate.

¶ 2. Accordingly, the decision of the court of appeals is affirmed.