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Torts — forest fires — double damages

By: WISCONSIN LAW JOURNAL STAFF//March 16, 2012//

Torts — forest fires — double damages

By: WISCONSIN LAW JOURNAL STAFF//March 16, 2012//

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Wisconsin Supreme Court

Civil

Torts — forest fires — double damages

Pursuant to sec. 26.21(1), if it is determined that the owner’s property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, then the property owner is entitled to double damages as a matter of course.

“[W]e decline to rewrite Wis. Stat. § 26.21(1), as Heritage Farms suggests, by replacing the word ‘may’ with the word ‘shall.’ The cases in which this court construed the word ‘may’ in a statute as ‘shall,’ or vice-versa, must be understood in context. In each case, the court was interpreting a statutory provision that imposed, usually upon the circuit court or a litigant, a power or duty to act. The issue then was whether the power or duty to act was discretionary or mandatory. To make that determination, we considered such factors as the statute’s objectives, the statute’s history, the consequences that would follow from the alternative interpretation, and whether the statute imposed a penalty for the failure to exercise the power or duty. See Eby, 153 Wis. 2d at 80; Karow, 82 Wis. 2d at 571-72; Rosen, 72 Wis. 2d at 207.”

“Wisconsin Stat. § 26.21(1), however, does not impose upon a property owner any power or duty to act. More specifically, § 26.21(1) does not impose upon a property owner, whose property is injured or destroyed by a forest fire, a power or duty to ‘recover, in a civil action, double the amount of damages suffered’; indeed, imposing such a duty would be unreasonable. Certainly, the statute does not provide for a penalty if the property owner chooses not to take such action. Rather, § 26.21(1) provides for the opportunity, if the property owner so chooses, to ‘recover, in a civil action, double the amount of damages suffered.’ Stated another way, pursuant to § 26.21(1), a property owner, whose property is injured or destroyed by a forest fire, may bring a civil action against the tortfeasor to recover double damages. See Heritage Farms I, 316 Wis. 2d 47, ¶23 (explaining that § 26.21(1) is ‘drafted from the perspective of who may bring an action’). When § 26.21(1) is understood in that context, it makes sense for us to interpret the word ‘may’ according to its common and ordinary meaning of granting permission. By contrast, it would be unreasonable for us to interpret the word ‘may’ as ‘shall,’ thereby effectively mandating that the property owner bring a civil action to recover double damages.

Reversed and Remanded.

2010AP355 Heritage Farms Inc., v. Markel Ins. Co.

Ziegler, J.

Attorneys: For Appellant: Thomsen, Mark, Brookfield; Kaas, Sarah F., Brookfield; Dutcher, Clay Ryan, Wautoma; For Respondent: McCoy, John V., Waukesha; Parish, Brian D., Waukesha; Henkel, Mark S., Stevens Point; Johnson, Eric R., Stevens Point

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