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New Supreme Court cases

The Wisconsin Supreme Court has voted to grant review in four cases. The case numbers, issues, and counties of origin are listed below.

2009AP567 State v. Miguel E. Marinez, Jr.

A decision in this child sexual assault case could clarify the law regarding the use of “other acts evidence” that arises when a child mentions the other acts during a videotaped statement.

Background: Miguel E. Marinez was charged with sexually assaulting a four-year-old girl, prior to being arrested for burning the child’s hands with hot water in a separate incident.

The state sought to introduce the girl’s statements about the hand-burning incident in the videotaped interview for the jury in the sexual assault case. The state said the jury needed to hear the entire interview to establish facts about the case. The defendant objected, contending the facts could be established without reference to the burn incident.

In its petition for review, the state argues that review is needed because although there was case law on the admission of other acts evidence in cases involving child victims, none of those earlier cases involve other acts evidence that a child brings up when discussing a charged offense in a videotaped statement or any type of admissible statement. The state contends the Court of Appeals is overlooking the unique challenges presented by child victims. From Jefferson County.

2006AP1229 Casper v. Amer. Int. South Ins.

2006AP2512 Casper v. National Union Fire

2007AP369 Casper v. National Union

These three cases stem from a traffic accident in 2003. The Supreme Court is asked to clarify issues related to Wisconsin’s “direct action” statute and personal liability of a corporate officer.

Background: Members of the Casper family and a friend were badly injured when their vehicle was rear-ended by a vehicle driven by Mark Wearing in Brown Deer in 2003. At the time of the accident Wearing was co-employed by Transport Leasing/Contract, Inc. (TLC) and Bestway Systems, Inc. (Bestway). The truck he was driving had been leased to Bestway by Ryder. Litigation ensued. Three separate appeals were filed. Two of these are now before the Supreme Court.

The first issue presented for review is wholly procedural and involves the question of what constitutes “excusable neglect.” The Caspers filed suit against a number of parties, including, as relevant here, National Union, as an insurer of one of the driver’s co-employers, TLC.

The Caspers served National Union with an authenticated copy of the Fifth Amended Summons and Complaint, on May 5, 2006. National Union failed to timely answer the amended complaint. The Caspers promptly moved for default judgment. On June 26, 2006, National Union filed an answer that was six days late and also moved to enlarge time for filing their answer.

The circuit court found that National Union’s failure to file its answer in a timely manner was “excusable neglect” under Wis. Stat. § 801.15(2)(a). Accordingly, the court granted National Union’s motion to enlarge time and denied the Caspers’ motion for default judgment.

The Caspers ask the Supreme Court to examine if, for excusable neglect, it is necessary to have evidence of the actions that caused the neglect or of the reasons why a “carefully structured process to respond to complaints” did not work if the party failed to timely respond.

The Caspers also ask the court to examine if, under Wis. Stat. §§ 632.24 and 631.01(1), a direct action claim against an insurer can be maintained where the insurance policy was not delivered or issued for delivery in Wisconsin but the insurance policy covers the insured “business operations” conducted in this state.

The other petition raises a novel question about the personal liability of a corporate officer, in this case, Jeffrey Winhem, the CEO of Bestway, one of the employers of the driver.

Wenham’s petition presents the following issues for review by the Supreme Court:

1. Can a corporate officer be held personally responsible for negligence that occurs while he is performing his job and is within the scope of his employment for a solvent and insured corporation?

2. Do public policy factors and a lack of foreseeability preclude a finding of negligence on the part of Jeffrey Wenham as a matter of law?

From Milwaukee County

2009AP246 Deanne Phillips v. U.S. Bank N.A.

This case examines that nature of bonus and incentive pay under an at-will employment relationship. The Supreme Court is asked whether, under the circumstances in this case, an employee has a cause of action for breach of implied duty of good faith and fair dealing.

The Court of Appeals ruled: (1) an at-will employee does not forfeit benefits that have accrued during employment, even though the plan governing those benefits conditions their receipt on the employee’s continued employment, if the employer fires the employee solely to prevent her from obtaining the accrued benefits; and (2) genuine issues of material fact exist as to whether the reasons U.S. Bank gave for firing Phillips were pre-textual.

The bank stated that under the benefits plan, payments to employees were completely discretionary, and the plan requires Phillips to be employed at the time of payment. Because Phillips was an “at-will” employee, whose employment ended before actual payment, the Bank asserted she was ineligible for payment under the terms of the plan.

Chief Justice Shirley S. Abrahmson and Justice Annette Kingsland Ziegler did not participate. From Milwaukee County.

2008AP3235 Clean Water Action Council of Northeast Wis. et al. v. DNR

In this case, the Supreme Court examines issues arising from a dispute between environmental advocates and the state Department of Natural Resources (DNR) over re-issuing a wastewater discharge permit for paper manufacturing plant in Green Bay. A decision by the Supreme Court could have broad statewide implications for industries regulated by the permits.

Background: On May 27, 2005, the DNR issued a public notice of its intent to re-issue a Wisconsin Pollutant Discharge Elimination System (WPDES) permit to Fort James Operating Co., which was subsequently acquired by Georgia-Pacific Consumer Products.

The council claims the DNR and Brown County Circuit Court (1) incorrectly interpreted Wis. Stat. § 283.63 to require that contested issues be raised during the public comment period to preserve them for consideration during later proceedings; and (2) improperly concluded the DNR lacks authority to determine whether the permit violates federal law.

The Council also sought judgment declaring that the DNR was required to comply with federal regulations and invalidating several state administrative code provisions relating to phosphorus and mercury discharges as conflicting with federal law.

The circuit court dismissed the Council’s petition and affirmed the DNR’s decision. The Council appealed, and the Court of Appeals reversed and remanded for a public hearing to be conducted in accordance with the procedures set forth in § 283.63. The Court of Appeals concluded, among other things, that the DNR possesses authority to determine whether provisions within a state-issued wastewater discharge permit comply with federal law.

The DNR now asks the Supreme Court to review the Court of Appeals’ decision. More specifically, whether an administrative permit review hearing is the appropriate forum for disputes over the application of federal law. From Brown County.

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