The decision is arguably incompatible with the Supreme Court decision in Ynocencio v. Fesko, 114 Wis.2d 391, 338 N.W.2d 461 (1983).
In Ynocencio, a minor driver was sponsored by his stepmother. The stepmother and the minors father had legal custody, and the whereabouts of the minors mother were unknown.
The Supreme Court held that both the stepmother and father were liable under sec. 343.15, interpreting the word parent broadly, to include the stepmother, based on her close relationship with the minor.
In the LaCount case, however, the court of appeals adopted such a narrow definition of custody that a stepmother could never qualify as a parent. A stepparent has none of the constitutional rights to raise a child from which the court derived its definition of custody unless the stepparent formally adopts the child.
Discussing custody further in a footnote, the LaCount court noted, Generally, a child must be born to or adopted by a married couple or the childs parents must marry after its birth natural legal custody of a nonmarital child vests only in the mother.
Ynocencio is an old case that was decided when sec. 343.15 was worded differently than it currently is. The old statute did not contain the current subsection (2)(a), excluding joint legal custody from the definition of custody.
However, what was then subsection (2), in its entirety, is now subsec. (2)(b) verbatim, and the continued applicability of Ynocencio has never been questioned by the court.
Should the facts in Ynocencio arise again, there will be a conflict. Ynocencio dictates that both the parent with custody, and the stepparent with custody, have imputed liability.
Under the narrow definition of custody in LaCount, however, the stepparent cannot be a parent unless that parent attained natural legal custody, via formal adoption proceedings.
This issue may seem irrelevant, but it wont be if the court of appeals decision in Folkman v. Quamme, 2002 WL 1980718 (No. 02-0261)(Wis. Ct. App.)(decided Aug. 29, 2002), is published as recommended.
Folkman involved an automobile accident in which a minor was negligent, and a policy containing liability limits of $50,000.
Although the policy contained a clause limiting liability for bodily injury to that amount, regardless of the number of insureds who may be liable, the court held the clause ambiguous, and held the insurer liable to the plaintiff for the maximum per the minor, the mother, and the father.
Publication of Folkman would create a strong monetary incentive for plaintiffs to emphasize the broad definition of parent in Ynocencio, and for defendants to emphasize the narrow definition of custody in LaCount.
– David Ziemer
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David Ziemer can be reached by email.