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State’s Supreme Court to take on 6 new cases

(Photo courtesy of Tom Sheehan)

(Photo courtesy of Tom Sheehan)

The Wisconsin Supreme Court has voted to accept six new cases.

2009AP2385 Olson v. Farrar

This case examines the proper scope of review for a court to determine an insurance company’s duties to defend and indemnify under a personal liability policy that generally excludes coverage for “property damage” resulting from a “motorized vehicle.”

Todd Olson alleges that without his permission, Robert Farrar used Farrar’s farm tractor to pull Olson’s mobile trailer home about eight miles. The tractor was not powerful enough to pull the trailer home up a hill. The trailer rolled back, colliding with Olson’s truck, which was following the trailer home.

Olson sought compensation from Farrar for property damage to both the mobile trailer home and his truck.

Upon receiving notice of this claim, Farrar’s insurer, Mt. Morris Mutual Insurance Co., provided Farrar a defense, reserved its rights pending a court determination on its duties to defend and indemnify.

The policy provided Farrar with personal liability coverage for “property damage but specifically excluded from coverage property damage which results from the ownership, operation, maintenance, use … of ‘motorized vehicles’ owned or operated by … an insured.” An exception to the exclusion provided that Mt. Morris would pay for damages in the event that coverage was provided by an incidental motorized vehicle or watercraft coverage.

The Court of Appeals said in order for there to be coverage in this case, the damage must have resulted from a mobile home trailer; the trailer must not have been towed by or attached to a motor vehicle; and the property damaged must not have been occupied by, used by, or in the care of Farrar.

Farrar argued that the policy provided coverage because the property damage to the mobile home and truck resulted from a mobile home trailer. Mt. Morris argued neither the damage to the mobile home nor the truck resulted from the mobile home trailer but rather the damage resulted from Farrar’s tractor.

Resolving the ambiguity in favor of coverage, the Court of Appeals concluded that the damage in this case “resulted from” the mobile home trailer. From Monroe County.

2010AP177 May v. May

This certification asks the Supreme Court to review whether a divorcing parties’ agreement to an unmodifiable child support floor for 33 months violates public policy. A decision could resolve a possible conflict in previous Court of Appeals and Supreme Court decisions.

In its certification memorandum, District IV Court of Appeals says this case is not about “ceiling” stipulations, which the Supreme Court has held are unenforceable. See Frisch v. Henrichs, 2007 WI 102, ¶74 n.23, 304 Wis. 2d 1, 736 N.W.2d 85.

The Court of Appeals says the question of whether parties may stipulate to a floor below which the amount of support may not go has not squarely been presented to the Supreme Court. District IV notes that in a footnote in Frisch, this court said, “Stipulating to a minimum amount for a limited period of time does not violate public policy because it ensures that a certain amount of child support is received, which is in the best interests of the children.” Frisch, ¶74 n.23.

District IV notes that the Court of Appeals has published a number of opinions which considered stipulations that set a floor on the amount of support. Only one of those decisions was issued after Frisch.

In Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, the Court of Appeals held that a stipulation setting a four-year floor on child support was against public policy. District IV says Jalovec appears to be inconsistent with this court’s footnote in Frisch, which made the blanket statement that a child support floor of limited duration is not against public policy.

A decision by the Supreme Court is expected to develop and clarify the law on the enforceability of child support stipulations that set a child support payment amount and then restrict the payor’s right to request downward adjustments. From Dane County.

2010AP387-CR State v. Nielsen

In this case, the Supreme Court reviews a challenge to a Court of Appeals order summarily imposing a $150 sanction against an assistant state public defender (SPD) for allegedly filing a false certification regarding an appendix to an appellate brief and omitting essential record documents from the appendix.

The SPD asks the Supreme Court to decide if the sanctions violate due process and if they impermissibly circumvent or supplant Supreme Court Rules established for deciding ethics issues through the Office of Lawyer Regulation. In addition, the SPD asks if rule Wis. Stat. Rule 809.19(2) Appendix, is unconstitutionally vague on its face or as applied for purposes of imposing monetary sanctions?

The SPD argues that the Court of Appeals’ practice of imposing monetary sanctions summarily in written decisions, for what the court deems to be violations of court rules regarding appendices in appellants’ briefs, violates due process because the sanctions are ordered without notice or an opportunity to be heard.

The Court of Appeals says although the petition for review challenges the appendix content rule, it effectively seeks review of the appellate rule addressing non-compliance with procedural rules, Rule 809.83(2). It says any modification of the process required to impose costs presumably should affect not only those cases where the Court of Appeals finds an appendix rule violation, but also cases where either the Supreme Court or the Court of Appeals finds any procedural rule violation. The Court of Appeals says both the appendix rule and the costs rule substantially affect the work of the Court of Appeals because it is primarily an error-correcting court and processes more than 3,000 appeals each year. From Racine County.

2009AP3029 Crown Castle v. Orion

This case examines whether circuit courts and court commissioners have authority to expand the scope of a supplemental examination to require a third-party company, sharing common ownership with a judgment debtor, to submit to a supplemental examination under Wis. Stat. § 816.03.

Orion argues that no where in Wis. Stat. § 816.03 does the circuit court or court commissioner have the authority or discretion to subject it as a non-party to the underlying lawsuit, to supplementary proceedings. It argues the plain language of the statutes is limited to a “judgment debtor” concerning the “judgment debtor’s property.”

Crown Castle asserts that over a century ago, the court has made it clear the circuit court has broad discretion in determining the scope of a supplemental examination. Crown Castle says that for the last decade, Wisconsin courts have had no problem interpreting and applying § 816.03 to answer the question in the negative.

Crown Castle contends the policy reasons behind the circuit court’s discretion could not be more clear:

“Unless a comprehensive and searching examination be allowed, an artful debtor might defeat the discovery sought.” From Outagamie County.

2010AP355 Heritage Farms v. Markel Ins. Co.

These consolidated cases return to the Supreme Court after remand and examine whether plaintiffs in a civil suit whose property was damaged or destroyed by a forest fire are entitled to double damages from the defendants under Wis. Stat. § 26.21(1).

Heritage Farms argues case law construing similar statutes, which provide that a plaintiff “may recover” double damages, confirms that once the statute is violated, the double damage provisions are triggered by operation of law. Heritage Farms argues that under the statutory language there should be at least a presumption double damages are awarded once there is a finding the forest fire occurred through willfulness, malice or negligence.

The respondents argue the legislature intended to build discretion into the determination whether to award double damages under § 26.21(1) by examining the conduct giving rise to the fire. They also argue the statute is unconstitutional as applied to them. They assert § 26.21(1) fails to provide “any guidance or criteria for determining when, how or whether its punishing provisions are to be imposed or enforced under the facts and circumstances of this case.” They say § 26.21(1) requires the trier of fact to create and apply its “own standards for enforcement of the punishing provisions rather than those set out in the statute.”

From Portage County.

2010AP1113-CR State v. Goss

In this case, the Supreme Court examines whether a driver with four prior OWI convictions, which carries a prohibited alcohol concentration of 0.02 percent, may be subject to a preliminary breath screening test based on a lower level of evidence supporting probable cause.

Goss claimed that under Renz, merely smelling alcohol on his breath provided insufficient grounds for the officers to administer a PBT. The court disagreed with Goss and denied his motion to suppress the results of the PBT and other evidence. The Court of Appeals affirmed, concluding the officer knew that Goss had four prior OWI convictions, which meant that his permissible alcohol concentration was below .02 percent and Goss had admitted drinking two beers which could bring him over a lower limit. The Court of Appeals concluded the officer had sufficient information to have reason to believe that Goss was in violation of the OWI laws.

Goss moved for reconsideration, pointing out that his statement to the arresting officer, that he had two beers, was not considered by the trial court at the suppression hearing, because the state had agreed not to rely upon. The state declined to litigate whether the statement had been made in violation of Goss’ Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966).

The Court of Appeals rejected Goss’ reconsideration motion. It concluded that the circuit court was entitled to determine the odor of intoxicants, in conjunction with the knowledge that Goss had four prior OWI convictions, provided probable cause to believe that Goss was in violation of the OWI laws.

Goss argues that more is required than merely the detection of the odor of intoxicants to find probable cause to believe that as a noncommercial driver with four priors, Goss had violated the OWI laws. He argues the officer lacked probable cause to request him to submit to the PBT merely on the basis that he had been convicted of four OWI offenses and his prohibited alcohol concentration was set at .02 percent. From Eau Claire County.

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