News

The Wisconsin Supreme Court has voted to accept four new cases, and the Court acted to deny review in a number of other cases. The case numbers, counties of origin and the issues presented in granted cases are listed below. More information about pending appellate cases can be found on the Wisconsin Supreme Court and Court of Appeals Access website. Published Court of Appeals opinions can be found here, and the status of pending Supreme Court cases can be found here.

2019AP1085 & 2019AP1086 5 Walworth LLC v. Engerman Contracting, Inc.

Supreme Court case type: Petition for Review (3)
Court of Appeals: District II
Circuit Court: Walworth County, Judge Daniel Steven Johnson, reversed and remanded with directions
Long caption:
2019AP1085
5 Walworth, LLC, Plaintiffs, v. Engerman Contracting, Inc., West Bend Mutual Insurance Company, and General Casualty Company of Wisconsin, Defendants, Downes Swimming Pool Co., Inc. and The Cincinnati Insurance Company, Defendant-Third-Party Plaintiffs, v. Otto Jacobs Company, LLC, Third-Party Defendant-Appellant, Acuity, a Mutual Insurance Company, Third-Party Defendant-Respondent-Petitioner No.

2019AP1086
5 Walworth, LLC, Plaintiff, v. Engerman Contracting, Inc., Defendant-Appellant, West Bend Mutual Insurance Company and General Casualty Company of Wisconsin, Defendants-Respondents-Petitioners, Downes Swimming Pool Co., Inc. and The Cincinnati Insurance Company, Defendants-Third-Party Plaintiffs, v. Otto Jacobs Company, LLC, and Acuity, a Mutual Insurance Company, Third-Party Defendants

Issues presented:
General Casualty Company of Wisconsin:
1. Whether there must be damage to third-property for there to be “property damage” caused by an “occurrence” under a standard Commercial General Liability (“CGL”) insurance policy.
2. Whether the integrated-systems test analysis applies to insurance coverage disputes to aid in the determination of whether there was “property damage” caused by an “occurrence.”

West Bend Mutual Insurance Company:
1. When a plaintiff’s claims exclusively seek the cost of removing and replacing an improperly constructed product, and allege no damage to property other than to that product itself, has there been an “occurrence” such that a standard Commercial General Liability (“CGL”) insurance policy must provide coverage?
2. Does the integrated-systems test apply in construction related insurance coverage cases to help determine whether “property damages” were the result of an “occurrence”?
3. Is an insurer entitled to summary judgment declaring it has no coverage obligations when its policy commenced roughly a year after a contractor had received notices of damages, had attempted to repair damages, and was aware of claims of ongoing damages at a pool complex, when its policy does not extend to losses which have occurred, or which have begun to occur, prior to its term?

Acuity, a Mutual Insurance Company:
1. Does the plaintiff’s claim that it bought a defective pool complex that needed to be replaced constitute “property damage” caused by an “occurrence” within the meaning of the commercial general liability policy issued by Acuity to Otto Jacobs Company LLC?
2. Is the pool complex an “integrated system” such that damage by one component to another component is not “property damage” caused by an “occurrence”?
3. Do the policy’s business risk exclusions, specifically the “your product” exclusion, eliminate coverage under the Acuity policy?

2019AP1987 Lowe’s Home Centers, LLC v. City of Delavan

Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Walworth County, Judge Daniel Steven Johnson, affirmed

Long caption: Lowe’s Home Centers, LLC, Plaintiff-Appellant-Petitioner, v. City of Delavan, Defendant-Respondent.

Issues presented:
1. Can the fee simple market value of a retail property be determined under the Markarian Hierarchy based on sales of reasonably comparable properties (Tier II) that are “vacant” (i.e., not occupied by a retail business at the time of sale), but do not constitute sales under duress or distressed sales, or are all sales of properties which are merely vacant at the time of sale per se disqualified as “dark stores”?
2. When does a “presumption of correctness” attach to a property assessment as a threshold matter, and what responsibility does a statutory assessor bear in a tax assessment challenge to demonstrate or otherwise evidence that an assessment was determined in accordance with Wisconsin law?

2020AP32 State v. Oscar C. Thomas

Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Kenosha County, Judge Bruce E. Schroeder, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Oscar C. Thomas, Defendant-Appellant-Petitioner

Issues presented:
1. Whether the Court of Appeals applied the wrong standard in determining that admission of DNA evidence in violation of his right of Confrontation was harmless.
2. Whether the Court of Appeals erred in determining that Mr. Thomas’ confession to a sexual assault was corroborated by a significant fact.

2020AP189 Acuity v. Estate of Shimenta

Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee, Judge Jeffrey A. Conen, reversed and remanded
Long caption: Acuity, a Mutual Insurance Co., Plaintiff-Respondent-Petitioner, v. Estate of Michael Shimeta and Terry Scherr, Defendant-Appellant, Partners Mutual Insurance Co., Intervening Defendant

Issues Presented:
1. Whether an insurer providing underinsured motorist (“UIM”) coverage in a “predetermined, fixed sum,” which does nothing more than put those insured under the UIM policy in the same position they would have occupied had the tortfeasor’s liability limits been the same as the UIM limits purchased, may reduce the benefits payable to those afforded coverage under the same UIM policy by all sums paid on behalf of any person that may be legally responsible for a motor vehicle accident.
2. Whether Wis. Stat. § 632.32(5)(i) permits an insurer issuing a UIM policy to reduce its per accident limit by any amounts paid on behalf of any person that may be legally liable for a motor vehicle accident to those insured under the same UIM policy to achieve the “predetermined, fixed sum” purchased.

2020AP877 Rachel Slabey v. Dunn County

Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Dunn County, Judge Maureen D. Boyle, affirmed
Long caption: Rachel Slabey, Plaintiff-Appellant-Petitioner, v. Dunn County, Wisconsin, Dennis P. Smith, Brenda LaForte, Marshall L. Multhauf and Paul Gunness, Defendant-Respondents, Dunn County Sheriff’s Office, Ryan Boigenzahn, John Doe One, John Doe Tow and John Doe Three, Defendants, Wisconsin County Mutual Insurance Corporation, Intervenor

Issues Presented:
1. Are Dunn County and the County Defendants liable under 42 U.S.C. § 1983 for its failure to address credible allegations that Boigenszhan was likely to cross a line sexually or romantically with female inmates?
2. Are Dunn County and the County Defendants liable under § 1983 for its failure to protect Rachel Slabey from a single sexual assault in light of the obvious constitutional risk of being sexually assaulted, particularly in light of credible allegations that Boigenszhan was likely to engage in inappropriate sexual conduct?

2020AP2119-CR State v. Larry L. Jackson

Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge Jeffrey A. Wagner, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent v. Larry L. Jackson, Defendant-Appellant-Petitioner

Issue presented: Whether Jackson’s post-conviction motion, claiming ineffective assistance of his trial counsel, alleged sufficient facts to warrant an evidentiary hearing?

2021AP102 Green Bay Professional Police Association v. City of Green Bay

Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Brown County, Judge Kendall M. Kelley, affirmed
Long caption: Green Bay Professional Police Association and Andrew Weiss, Plaintiffs-Appellants-Petitioners, v. City of Green Bay, Defendant-Respondent

Issues presented:
1. Does providing notice to law enforcement officers of “the nature of the investigation” prior to being interrogated under §164.092, Stats., satisfy Loudermill’s requirement that a public employee be provided with notice and an opportunity to be heard with respect to disciplinary “charges” after a personnel investigation has been completed?
2. Is due process satisfied when a law enforcement officer is disciplined for “charges” never identified in either a Loudermill notice or Loudermill hearing, simply because his employer identified the policies that eventually led to such discipline (along with a host of others) prior to interrogating the officer?
3. Does Cleveland Board of Education v. Loudermill limit the government’s ability to discipline its employees to the “charges” that are actually identified in a Loudermill notice and/or at a Loudermill hearing?
4. Did the arbitrator “manifestly disregard the law” articulated in Loudermill?

2020AP1032 John Doe I v. Madison Metropolitan School District

Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Dane County, Judge Frank D. Remington, affirmed
Long caption: John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe 4, Plaintiffs-Appellants-Petitioners, John Doe 5 and Jane Doe 5, Plaintiffs-Appellants, John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe 8, Plaintiffs, v. Madison Metropolitan School District, Defendant-Respondent, Gender Equity Association of James Madison Memorial High School, Gender Sexuality Alliance of Madison West High School and Gender Sexuality Alliance of Robert M. LaFollette High School, Intervenors-Defendants-Respondents

Issues presented:
1. May plaintiffs in Wisconsin courts sue using pseudonyms in appropriate cases, and if so, when and how? Did the lower courts erroneously deny Petitioners’ anonymity request?
2. Whether the lower court erred by declining to enjoin a significant violation of constitutional rights without considering Petitioner’s likelihood of success or properly weighing the serious harms Petitioners identified?

Review denied: The Supreme Court denied review in the following cases. As the state’s law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2019AP808-CR State v. Eickner

2019AP1533-CR State v. Koepsel

2019AP2081-CR State v. Herbes

2019AP2429 State v. Bodoh

2020AP209-CR State v. Schifelbine

2020AP234-CR State v. Voss

2020AP247-CR State v. Fowler

2020AP351-CR State v. Medina Fernandez
2020AP352-CR
2020AP353-CR

2020AP902 Club Unique v. DNR

2020AP1039-CR State v. Dantonio (Justice Rebecca Frank Dallet dissents)

2020AP1118-CR State v. Scott

2020AP1139-CR State v. Willis

2020AP1398-CR State v. Capanu

2020AP1399-CR State v. Deen

2020AP1517-CR State v. Newman

2020AP1754 Dodge County HHS v. L.W.

2020AP1828-CR State v. Granat
2020AP1829-CR

2021AP30 Winnig v. Wallace

2021AP454 Portage Co. v. Dugan
2021AP455

2021AP1068-W Hill v. Benzel

2021XX625 Hammersley v. Court of Appeals

2019AP897-CRNM State v. Riley
2019AP898-CRNM

2019AP949 State v. Hopkins

2019AP1973 State v. Moffett

2020AP18-CR State v. Holland

2020AP389-CR State v. Harris

2020AP537 U.S. Bank Nat. Assn. v. Murphy (Chief Justice Annette Kingsland Ziegler did not participate)

2020AP683-CR State v. Applewhite

2020AP974 State v. Thao

2020AP1539-CR State v. Jackson

2020AP1609-CR State v. Smith

2020AP2119-CR State v. Jackson

2021AP406-W Triplett v. Kosbab

2018AP1888 McCaigue v. Messinger

2020AP1302-CR State v. DiMiceli

2020AP1327-CR State v. Judd-Rapp

2020AP1942 Nordstrom v. Kane

2021AP1165-CR State v. Dunay

2021AP1566-W Ashford v. Schulteis

2021AP1739-W Archuleta v. Evers

Contact:
Tom Sheehan
Court Information Officer
(608) 261-6640