State’s high court takes on four new cases

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The Wisconsin Supreme Court on Friday voted to accept four new cases, and also acted to deny review in a number of cases.

City of Menasha v. Gracia

These consolidated cases involve challenges to two separate drunken driving convictions against Juan G. Gracia. In one case, the Supreme Court examines whether police entry into Gracia’s bedroom while investigating a 2010 incident that led to his fourth operating while intoxicated conviction was lawful under the community caretaker doctrine.

Because of the progressive nature of the penalties for OWI convictions, Gracia also challenges his second OWI conviction, which occurred in 1998, on the grounds that he did not validly waive his right to counsel before entering a pro se guilty plea.

In the 2010 case, the circuit court rejected Gracia’s collateral attack on his 1998 conviction, concluding that Gracia had validly waived his right to counsel through a “conscious decision” to not spend the money it would cost to hire an attorney.

The Court of Appeals affirmed on both issues.

Gracia asserts that the Court of Appeals decision is “tantamount to permitting police to make warrantless entries to the homes of Wisconsin citizens after every car accident to see if someone may be hurt.” He also argues that he did not make a truly knowing and intelligent waiver of his right to counsel in 1998 case.  He points to the fact the trial court never explained that an attorney might be able to find defenses to the charge or might be able to mitigate the charge or the potential sentence.

A decision by the Supreme Court could clarify law surrounding the community caretaker function of police and the standards involved in waiving the right to counsel.

Johnson v. Masters

This certification, arising from a divorce judgment entered into more than 20 years ago, examines Wis. Stat. § 893.40, the statute of repose.

More specifically, the Court of Appeals has asked the Supreme Court: When a wife seeks to obtain a pension award by submitting a qualified domestic relations order as required by the divorce judgment, and the submission is approximately one year after the former husband retires, but more than 20 years after the divorce judgment, is this an “action” which is barred by the statute of repose.

In certifying the case, the Court of Appeals identifies five issues regarding whether Hamilton truly should apply to the present case:

• Whether the submission of the QDRO constituted an “action” on the divorce judgment under the language of Wis. Stat. § 893.40 since it did not involve the filing of a summons and complaint.

• Whether Hamilton should apply here because that case involved a third party (the state of Wisconsin) filing an action to collect child support arrearages, while the present matter involves the same two parties and the same divorce proceeding.

• Whether the statement in Hamilton about statutes of repose not depending on the accrual of causes of action applies to the vesting of Johnson’s right to a portion of Masters’ pension, especially when the WRS did not accept QDROs at the time the divorce judgment was entered.

• Whether Hamilton can be applied to this case consistent with Wis. Stat. § 753.03, which provides that the circuit courts of this state have the power to issue writs or orders necessary to carry their judgments into effect.
• Whether Johnson’s attempt to collect on that part of the pension is really an action on the divorce judgment and whether Masters has standing to object to Johnson’s attempt to collect on the property interest that was legally conferred on her.

Acuity v. Society Insurance

The case examines whether damages arising from faulty construction work performed by a contractor qualifies as an occurrence under the terms of a commercial general liability insurance policy.

Ron Stoikes, owner of RS Construction, and Terry Luethe, owner of Flint’s Construction, entered into an $8,500 contract with VPP Group LLC to remove and reinstall a concrete wall on the south side of a building containing VPP’s engine room, which provided refrigeration and utility services to the company’s animal processing plant.

VPP supplied all materials, and RS and Flint provided all labor. Work began in May 2006. RS shored up the engine room and removed the existing wall to grade level. The VPP processing plant continued at full operation during the phase of the work.

On June 12, 2006, during Flint’s excavation of a trench adjacent to the south wall site, the soil began to erode from under the concrete slab of the first floor of the engine room. As a result, the engine room’s first floor slab cracked and a portion deflected downward, as did a portion of the second floor and roof. The engine room’s masonry walls adjacent to the south wall also sustained damage, disrupting utility service and reducing the plant’s refrigeration capacity. As a result, VPP incurred costs of approximately $380,000.

VPP repaired the engine room by replacing the portion of the first floor concrete slab that had cracked, jacking up the second floor, and replacing portions of the roof slab. VPP contacted its insurer, Acuity, following the loss. Acuity paid a total of $636,466.39 to VPP in final settlement of the loss claims, including the $380,000 claimed for extra expenses and damages relating to the repair of the building, excluding costs to VPP related to replacing the south wall.

Acuity commenced a subrogation action against RS, Flint, and their insurer, Society Insurance, seeking to recover damages arising from the engine room collapse.

The circuit court concluded the CGL policy did not provide coverage because there was no occurrence. The Court of Appeals concluded the damages suffered by VPP were the result of an occurrence. The Court of Appeals also concluded the economic loss doctrine did not bar coverage and that no business risk exception in the policy applied.

The insurance company (Society) argues the Court of Appeals’ decision is in direct conflict with a Court of Appeals decision in another case recently granted review by the Supreme Court, Yeager v. Society Insurance.

Yaeger v. Polyurethane Foam Insulation

The case examines whether property damage caused accidentally by a contractor is covered as an occurrence under the terms of a commercial general liability insurance policy that defines occurrence as “an accident.” A decision by the Supreme Court is expected resolve an apparent conflict between recent Court of Appeals decisions.

In October of 2004, Mark Yeager began construction on a new home. In December 2007, he hired Polyurethane Foam Insulation to insulate the exterior walls of the home using a spray-in foam product. About one week after PFI finished its work, Yeager became concerned that the insulation had not been properly installed. He subsequently sued both PFI and the product manufacturer, BioBased Insulation, LLC.

Yeager’s complaint alleged causes of action for breach of contract, negligent breach of contract, and breach of warranty with respect to PFI.  He asserted that PFI failed to install the insulation according to the specifications of the contract and that PFI negligently installed the insulation.

Society Insurance, which had issued a CGL policy to PFI, was granted leave to intervene. The circuit court granted Society’s motion to bifurcate and stay, ruling that it would determine whether Society’s policy provided coverage for Yeager’s claims against PFI before reaching the merits of Yeager’s claims.

The policy defined occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

Society moved for summary judgment and the circuit court granted the insurance company’s motion. It held that the CGL policy did not provide coverage for Yeager’s claims because “the exclusions apply here.”

Reviews denied

The Supreme Court denied review in the following cases.

2011AP174 — State v. Hipsher

2010AP2808-CR — State v. Geske

2011AP1484-CRNM — State v. Nicholas

2011AP2923-W — Sturdevant v. Cir. Ct. Brown Co.

2010AP748 — Baumeister v. Auto Prods.

2012AP284-W — Moore v. Pollard

2009AP2610 — Eau Claire co. v. Softscape

2010AP3085-CR — State v. Anderson

2009AP2832-CRNM — State v. Crain

2010AP2515-CR — State v. Randall

2010AP2919-CR — State v. Benjamin

2011AP1057-CR — State v. Collins

2010AP2855 — Geegan v. Wolff

2011AP66/67  — State v. Jacobs (Justice Ann Walsh Bradley did not participate.)

2009AP2830 — State v. Gladney

2010AP2264-W — Welch v. Thurmer

2010AP2338 — State v. Townsend

2010AP2432 — Park Terrace v. Transp. Ins.

2010AP3108-CR — State v. Slater

2011AP65  — State v. Johnson

2011AP209 — Schotz v. Indianapolis Life Ins.

2011AP336-CR — State v. Harvey

2011AP963-CR — State v. Nelson

2011AP1475-W — Orozco-Martinez v. Pugh

2011AP1757-CR — State v. Flowers (Justice Patience Drake Roggensack did not participate.)

2010AP3002-CR — State v. McKay

2011AP608 — State v. Briganti

2011AP25 — Engel. v. Parker

2011AP658-CR — State v. Brantley

2011AP1111-W — Kaprelian v. Torhorst

2011AP2411-W — McKinney v. Pollard (Justice David Prosser did not participate.)

2010AP2239-CR — State v. Clayton-Jones

2010AP2918 — Rabine v. Rabine

2012AP368/69-OA — Krueger v. COA

2011AP430 — Co. of Washington v. Walker

2011AP511-CR — State v. Austin