“Marquardt argues that the County’s attorney acted in bad faith in advising the pension board to offset all his worker’s compensation benefits, including the 15% increase, and the pension board’s refusal to exempt his 15% increase in worker’s compensation benefits under Wis. Stat. § 102.57 resulted in his being ‘wantonly or recklessly wronged by the defendants.’ He contends that the pension board’s actions are comparable to those of an insurance company whose actions are motivated by ‘bad faith’ towards its insured….Here, the record simply does not allow for, even taking inferences in the light most favorable to the plaintiff, a finding of bad faith or maliciousness. Although Marquardt claims the trial court’s findings are wrong, this court must accept the trial court’s findings unless they are clearly erroneous. [Citation] The record supports the trial court’s findings and, accordingly, they are not clearly erroneous.”
Moreover, “bad faith” is a tort and must be alleged in the pleadings. Nowhere in Marquardt’s pleadings did he allege that either the pension board or the county committed the tort of “bad faith.”
“A review of his pleadings contains only an allegation that the pension board’s action was arbitrary and capricious, and contrary to public policy allegations. These are allegations more clearly related to a certiorari action, and attorney’s fees are not recoverable in certiorari actions absent more.”
Further, we reject plaintiff’s claim that he was acting as a “private attorney general.”
“In order for Marquardt to prevail on his theory that he was acting as a private attorney general, he was required to show that some statutory basis existed for his request for attorney’s fees. Here, there is none. Contrary to Marquardt’s contention, this case was not about Marquardt’s entitlement to Wis. Stat. § 102.57 benefits. Those rights had already been determined. This case dealt with the interpretation of a county ordinance. No statutes permit the recoupment of attorney’s fees for challenging the interpretation of an ordinance. Further, Marquardt was obligated to prove that the right he was enforcing was a public right. The parties disputed the setoff provisions of Marquardt’s worker’s compensation benefits against his disability pension. No sweeping policy decision affecting a large class of persons was implicated in this litigation.”
Plaintiff’s additional arguments based on trust law, or the Weinhagen Rule are similarly unavailing.
Recommended for publication in the official reports.
DISSENTING OPINION: Schudson, J. “[R]elieving the County of responsibility for Marquardt’s attorney’s fees also ‘defeat[s] the statute’s clear objective.’… Thus, I conclude that Marquardt’s claim for attorney’s fees is encompassed by the ‘private attorney general’ doctrine declared in Watkins v. LIRC, 117 Wis. 2d 753, (1984).”
Dist I, Milwaukee County, Franke, J., Curley, J.
For Appellant: John R. Hoaglund Jr., Pewaukee
For Respondent: Mark A. Grady, Milwaukee