COURT OF APPEALS DECISION DATED AND FILED December 3, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. The Estate of Joshua Reif, by his parents, appeal from the order of the circuit court that dismissed their complaint against Automotive & Truck Services, Inc. The Reifs argue on appeal that the circuit court erred when it determined that the Reifs’ claims are governed exclusively by the Worker’s Compensation Act, Wis. Stat. ch. 102 (2005-06),[1] and when it determined that Joshua’s death was caused by an accident. Specifically, the Reifs argue that since the tasks Joshua was assigned to perform violated the child labor laws, then they should not be limited to recovering only under the Worker’s Compensation Act. Because we conclude that the circuit court did not err, we affirm.
¶2 This case involves tragic, but undisputed facts. In December 2005, Joshua Reif was seventeen-years
old and a student at
¶3 The Reifs sued Automotive and its insurance company. Instead of answering, Automotive moved to dismiss the complaint. The circuit court held a hearing, and granted the motion. The court held that Joshua’s death was the result of an accident “within the meaning of the code.” The court further found that towing was incidental to Joshua’s employment. And third, even though Automotive conceded that it had violated the child labor laws, the worker’s compensation law provided the exclusive remedy for this injury.
¶4 The Reifs argue first that the circuit court erred when it determined that Worker’s Compensation provides the exclusive remedy under these circumstances. They argue that the purpose of Worker’s Compensation conflicts with the purpose of the child labor laws and that Worker’s Compensation provides a special remedy against employers who hire children illegally, but should not apply to employers who hire children to perform activities that violate the child labor laws.
¶5 The Worker’s Compensation Act provides that it is the
exclusive remedy for an employee against an employer, Wis. Stat. § 102.03(2), when: the employee sustains an injury growing out
of and incidental to work; at the time of the injury, both the employee and the
employer are subject to the Act; the injury is not self-inflicted; and the
injury arises out of the employee’s employment.
Sec. 102.03(1). Under the regulations of the Department of
Workforce Development, which enforce the child labor laws, a minor may not be
employed as a driver of a tow truck. Wis. Stat. § 103.66; Wis. admin. code § DWD
270.12(21)(b)8.a. (Aug. 2005). There is
no dispute in this case that Joshua was driving a tow truck in violation of
that regulation. The issue presented is
whether the violation of the regulation takes the employer out of the
exclusivity provision of the Worker’s Compensation Act. We agree with the circuit court that there is
nothing in
¶6 The issue of whether a claim is subject to the exclusive remedy
provision is a question of law that we review de novo. Lentz v. Young, 195
¶7 Amendments to the Act are proposed by the Worker’s
Compensation Advisory Council, composed of representatives of labor, industry
and insurance.
¶8 In determining whether the Worker’s Compensation Act provides
the exclusive remedy to an injured worker, the courts consider whether the act
that caused the injury was intentional or accidental. An employer may not use the Worker’s
Compensation Act to shield him or herself from liability for an intentional
act. Lentz, 195
¶9 If the conduct was an accident, however, then the Act provides
the exclusive remedy. An accident is a
“fortuitous event unexpected or unforeseen by the injured person.” Jenson v. Employers Mut. Cas. Co.,
161
¶10 In this case, the circuit court considered the incident from Joshua’s perspective and concluded that he certainly did not foresee that pursuing this part of his employment would lead to his untimely death. From the perspective of the employee, and as defined by the case law, therefore, this was an accident. We agree. Because it was an accident, then Worker’s Compensation provides the exclusive remedy.
¶11 The Reifs also ask the court, in essence, to carve out a public
policy exception for an employer who violates the child labor laws. As we noted in Peterson, however, were
we to adopt such an exception: “we would
potentially upset the delicate balance of interests the legislature and members
of advisory council have striven to achieve.” Peterson, 276
¶12 In support of their argument in the circuit court, the Reifs
cited to a number of cases from other states.
These cases primarily considered the issue of whether worker’s
compensation is the exclusive remedy when a child is illegally employed. See,
e.g., Roszek v. Bauerle & Stark
Co., 282
¶13 We conclude that Joshua’s death was an accident as defined by
the cases. We further conclude that
there is nothing in
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.