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Wisconsin Supreme Court accepts two new cases

Madison, Wisconsin - July 10, 2013

The Wisconsin Supreme Court has voted to accept two new cases. The case numbers, issues, and counties of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked.

2012AP858 Blasing v. Zurich American Ins. Co.
This insurance case involving alleged negligence by a store employee examines whether the omnibus statute, Wis. Stat. § 632.32(3)(a), requires a liability insurer to defend and indemnify a tortfeasor where the alleged negligence causes injury to the named insured  person.

Some background:  Vicki L. Blasing bought lumber from a Menards store. She drove her pickup truck to the Menards' lumber yard, where a Menards employee used a forklift to load the lumber.  During the loading process, a piece of lumber fell from the forklift, injuring Blasing's foot.

Blasing sued Menards for her injury, alleging that the Menards employee had been negligent.  Two insurance policies were in place at the time of the accident.  Blasing had an auto insurance policy with American Family; Menards carried a commercial general liability (CGL) policy through Zurich American. 

Menards argued that Blasing's American Family auto insurance policy should have to defend it.  American Family countered by arguing  that it would be an unreasonable  outcome for American Family to have to defend the negligent Menards' employee and potentially pay for Blasing's injury when Menards has its own CGL policy.

The trial court ruled in favor of American Family.  The Court of Appeals reversed, ruling that American Family must defend Menards and indemnify it against any loss. During the appellate proceedings, the parties agreed that it made sense to resolve their dispute by interpreting the omnibus statute, Wis. Stat. § 632.32, because if that statute requires that the American Family policy provide coverage for Menards under the circumstances of this case, then American Family must provide coverage regardless of the particular language in its policy.  See Frye v. Theige, 253 Wis. 596, 600-01, 34 N.W.2d 793 (1948) ("[I]f what is stated in the policy to be a general exclusion of coverage in fact denies to an additional assured the same protection that is given to the named assured neither its form nor its location in the policy will save it or give it validity.").   The omnibus statute requires that automobile insurance policies provide additional vehicle users "the same protection as is afforded to the named insured."  See Carrell v. Wolken, 173 Wis. 2d 426, 436-37, 496 N.W.2d 651 (Ct. App. 1992). 

The Court of Appeals held that because the policyholder, Blasing, would have been using her truck if she had been engaged in the loading activity at Menards, and because it is undisputed that the Menards employee was acting with Blasing's permission to load Blasing's truck, the omnibus statute requires coverage for Menards under Blasing's American Family automobile policy. 

American Family objects to this outcome.  It argues that it is unreasonable  to require that an injured person's insurance policy be used to defend and possibly indemnify a tortfeasor when the tortfeasor has insurance that would otherwise provide sufficient coverage.  It argues that neither a reasonable insured nor a reasonable insurer would ever expect that a party like Menards could invoke a policyholder's liability coverage against the policyholder.  It further  argues that if the court of appeals is right, then "every business that assists a policyholder in placing purchases in a policyholder's vehicle will have free liability insurance, courtesy of the injured policyholders themselves, for injuries arising out of the tortfeasor's negligence." From Jefferson County.

2012AP1426 State v. Bentdahl
The central question raised in this operating while intoxicated (OWI) case is whether a trial court has the  discretion under State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), to dismiss a refusal charge after a defendant goes to trial on the OWI charge.
Specifically, the Supreme Court considers:

  • Does Brooks, which held that a trial court has discretion to dismiss a refusal charge after a defendant pleads guilty to a charge of OWI, also apply when the defendant goes to trial on the OWI charge?
  • Does this court's opinion in Brooks apply under current law to allow trial courts to dismiss refusal charges under their discretionary authority?

Some background: Brandon H. Bentdahl was arrested for OWI on Nov. 17, 2010 in Columbia County.  The officer read to Bentdahl the required informing statement under § 343.305(4), which included the following: "If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties."  § 343.305(4).

The officer asked Bentdahl if he would submit to a blood test.  Bentdahl said no.  The officer took Bentdahl to the hospital where a blood sample was drawn. The officer then gave Bentdahl a notice of intent to revoke operating privilege as required by § 343.305(9).  The notice included the following statement:  "You have 10 days from the date of this notice to file a request for a hearing on the revocation with the court named below [referring to the Columbia County circuit court]. . . . If you do not request a hearing, the court must revoke your operating privileges 30 days from the date of this notice." 

Bentdahl did not request a hearing.  On Dec. 17, 2010, proceeding under § 343.305(10), the trial court entered a judgment convicting Bentdahl of refusing to take a test for intoxication.  The trial court revoked Bentdahl's driver's license for two years and ordered that he complete an alcohol assessment and equip his vehicle with an ignition interlock for two years. In addition, the court ordered lifetime disqualification of Bentdahl's commercial driver's license due to the refusal conviction being a second alcohol conviction within five years. 

In January 2011, Bentdahl's attorney met with the prosecutor and argued that the manner in which the officer dated the "Notice of Intent to Revoke" form was so confusing that Bentdahl could not have understood what his deadline was to request a hearing. The prosecutor agreed to a vacation of the refusal conviction and a stay of the order for revocation of Bentdahl's driver's license pending a future hearing.

The underlying OWI charge went to a jury trial.  The state presented the blood test evidence and did not offer any evidence that Bentdahl initially refused to submit to the blood test.  The jury acquitted Bentdahl of OWI and the companion charge of operating with a prohibited alcohol concentration.

Bentdahl moved to dismiss the refusal charge, arguing that the notice was defective on account of the confusing date and therefore failed to provide the notice required by the statute. The trial court found the defect of the confusing date to be "fundamental to the purpose of the statute therefore depriving the court of jurisdiction" and granted the motion to dismiss the refusal charge.

The state appealed, and the Court of Appeals reversed the trial court order granting Bentdahl's motion to dismiss the refusal charge. The Court of Appeals held in part that under Brooks, the trial court has the discretionary authority to dismiss a refusal charge at a hearing after a guilty plea or after a trial, "with the outcome of the trial being just one factor for the court to consider."  Thus, the Court of Appeals remanded the matter to the trial court "for its exercise of discretion based on the facts before it."

The state argues that if the Court of Appeals is correct, such that trial courts have discretion under Brooks to dismiss refusal charges for defendants who do not plead guilty to OWI, then there is nothing for defendants to gain by submitting to chemical testing.  The  State also argues  that Brooks is not compatible with the current version of the implied consent statute  because the statute provides  no discretion to determine whether to hold a hearing, or whether to revoke a person's operating privilege. 

A decision by the Supreme Court is expected to clarify a trial court's discretion to dismiss a refusal charge. From Columbia County.

Tom Sheehan
Court Information Officer
(608) 261-6640

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