Summary Judgment – Issue of Material Fact

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WI Court of Appeals – District IV

Case Name: David Gerbasch, et al. v. City of Madison

Case No.: 2018AP512

Officials: Lundsten, P.J., Blanchard, and Kloppenburg, JJ.

Focus: Summary Judgment – Issue of Material Fact

The City of Madison appeals an order granting summary judgment dismissing its claims against five stagehands employed by the City. The City’s claims seek recovery from the employees of contributions to the Wisconsin Retirement System (the retirement system) that the City made on behalf of the employees. The City made these contributions after the state Department of Employee Trust Funds (ETF) determined in 2013 that the stagehands had been employees eligible to participate in the retirement system, one of them as long ago as 1980. We will refer to these contributions as the “employee back contributions.” The City argues that the stagehands are not entitled to summary judgment dismissing the City’s claims for recovery of the employee back contributions. The City also argues that it is entitled to summary judgment in its favor on those claims. The stagehands argue that they are entitled to summary judgment and that the City is not.

We conclude on de novo review that neither the City nor the stagehands are entitled to summary judgment. In particular, one of our major conclusions is that there are genuine factual disputes about whether the stagehands reasonably relied on the City’s decision to treat them as independent contractors before ETF determined that they were employees. For at least this reason, neither side establishes, based on the summary judgment evidence, that the City is or is not equitably estopped as a matter of law from pursuing its claims to recover the employee back contributions from the stagehands. Based on all of our conclusions, we reverse the court’s grant of summary judgment to the stagehands, affirm its denial of summary judgment to the City, and remand for further proceedings.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.