2009 WI 27
|
Supreme Court of |
|
|
|
|
Case No.: |
2007AP983 |
|
Complete Title: |
|
|
|
Heritage Farms, Inc., Audrey Bunchkowski, Russell Bunchkowski, Ruth Dutcher, Howard Dutcher, Sally Freitag, Amy Holzwart, James Holzwart, Kathleen Khin, Glenwood Zellmer, Daryl Lloyd, Donald Lloyd, Judy Maas, Jeffrey Maas, Carolyn Mueller, Lois Rucich, George Rucich, Donna Semrow, Harland Semrow, Beverly Singer, Norman A. Singer Trust, Joan Singer, Gordon Singer, Singer Living Trust, Inga Stoellinger, Otto Stoellinger, Catherine Swanton, Swanton Family Trust, Christine Toliver, Alan Toliver, Krista Zimmer and Norman Zimmer, Plaintiffs-Appellants-Petitioners, Hartford Insurance Company of the Midwest, Auto-Owners
Insurance Company, Safeco Insurance Company of Involuntary-Plaintiffs, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants-Respondents. ------------------------------------------------ Ted Schwochert, Paul B. Schwochert, Helen Schwochert and Sue Schroeder, Plaintiffs-Appellants-Petitioners, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants-Respondents. ------------------------------------------------ Wisconsin Department of Natural Resources, Plaintiff, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants. |
|
|
|
|
|
REVIEW OF A DECISION OF THE COURT OF APPEALS 2008 WI App 46 Reported at: 309 (Ct. App.2008-Published) |
|
|
|
|
Opinion Filed: |
March 26, 2009 |
|
Submitted on Briefs: |
|
|
Oral Argument: |
December 9, 2008
|
|
|
|
|
Source of Appeal: |
|
|
|
Court: |
Circuit |
|
County: |
Waushara |
|
Judge: |
Thomas T. Flugaur
|
|
|
|
Justices: |
|
|
|
Concurred: |
|
|
Dissented: |
ROGGENSACK, J., dissents (opinion filed). GABLEMAN, J., joins dissent. |
|
Not Participating: |
|
|
|
|
Attorneys: |
|
For the plaintiffs-appellants-petitioners there were
briefs by Mark L. Thomsen, Charles David
Schmidt, and
For the defendants-respondents there was a brief filed by
John V. McCoy, Brian D. Parish, and
An amicus curiae brief was filed by Charlotte Gibson, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general, on behalf of the Wisconsin Department of Natural Resources.
2009
WI 27
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
(L.C. No. |
2004CV131, 2004CV138 & 2005CV24) |
||
STATE OF |
IN SUPREME COURT |
||
|
|
||
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published court of appeals' decision[1] that affirmed the decision of the Waushara County Circuit Court, Thomas T. Flugaur, Judge. The circuit court concluded that Heritage Farms, Inc.[2] could not be awarded double damages and attorney fees pursuant to Wis. Stat. § 26.21(1) (2007-08)[3] because that statute applies only to railroad corporations and none of the defendants are a railroad corporation. The court of appeals affirmed, and as a result, Heritage Farms petitioned this court for review. We granted the petition for review and reverse the court of appeals.
¶2 This case presents two issues for review. First, does Wis. Stat. § 26.21(1) apply only to a certain class of tortfeasor? We conclude that Wis. Stat. § 26.21(1) is not limited to a specific class of tortfeasor such as a railroad corporation, and a violation under Wis. Stat. § 26.20 is not a prerequisite for the applicability of § 26.21(1). Second, does § 26.21(1) require a showing of "gross negligence"? We conclude that the term "negligence" in § 26.21(1) does not require a showing of "gross negligence."
I. BACKGROUND
¶3 Between March 3 and March 8, 2003,[4] Jeffrey Knaack ignited a large debris pile, which consisted of leaves, pine needles, brush, stumps, and building materials. Knaack was responsible for maintaining this burn pile at the Lake of the Woods Campground as a favor to Jack Scimeca who owned the property and operated the business. On April 14, 2003, the March burn pile fire escaped the Lake of the Woods Campground, and as a result, burned 572 acres of land.
¶4 Heritage Farms filed a civil action against the defendants[5] (hereinafter referred to as "Markel") claiming negligence, trespass, and nuisance. Heritage Farms sought double compensatory damages and attorney fees pursuant to Wis. Stat. § 26.21(1). Markel moved the court for partial summary judgment asserting that § 26.21(1) did not apply because none of the defendants were a railroad corporation and none had violated Wis. Stat. § 26.20. The circuit court granted that motion and concluded that § 26.21(1) applies only to railroad corporations. After a four week jury trial, a verdict was returned that awarded Heritage Farms $568,422 in damages.[6] Heritage Farms subsequently moved the circuit court to reconsider its previous ruling regarding the applicability of § 26.21(1). The circuit court denied Heritage Farms' motion to reconsider. Heritage Farms appealed that ruling and the court of appeals affirmed the circuit court. The court of appeals concluded that § 26.21(1) applied only to railroad corporations and did not decide the issue of whether "gross negligence" was required. Heritage Farms petitioned this court for review, which we accepted.
II. STANDARD OF REVIEW
¶5 The issues in this case are questions of statutory
interpretation. Statutory interpretation
is a question of law that we review de novo but benefiting from the lower
courts' analyses. C. Coakley
Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶14, 310
III. ANALYSIS
¶6 "[T]he purpose of statutory interpretation is to determine
what the statute means so that it may be given its full, proper, and intended
effect." State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This court begins statutory interpretation
with the language of the statute.
¶7 Context and structure of a statute are important to the meaning of
the statute.
¶8 "'If this process of analysis yields a plain, clear statutory
meaning, then there is no ambiguity, and the statute is applied according to
this ascertainment of its meaning.'"
¶9 The two issues presented in this case require us to interpret Wis. Stat. § 26.21(1) and related statutes. We address both issues in detail below.
¶10 Wisconsin Stat. § 26.21,
"Civil liability for forest fires," provides:
(1) In addition to the penalties provided in s. 26.20, the United States, the state, the county or private owners, whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence. In a civil action, a court may award reasonable costs for legal representation to provide owners recovering damages under this subsection.
(2) Persons causing fires in violation of this chapter shall be liable to the state in an action for debt, to the full amount of all damages done to the state lands and for all expenses incurred by the towns fighting forest fires and shall be liable to municipalities in an action for debt, to the full amount of all damages to the municipal lands and for all expenses incurred by the municipalities fighting such fires.
¶11
(a) Any corporation, by its officers, agents, or employees, violating this section, shall forfeit not more than $500.
(b) Any corporation, by its officers, agents or employees, willfully violating this section shall be fined not more than $1,000.
(c) Any conductor, individual in charge of a train or officer, agent or employee of a railway who violates this section shall forfeit not more than $500.
A. Applicability of
¶12 Markel argues that Wis. Stat. § 26.21(1) does not apply to all tortfeasors, but rather, it argues that the statute applies only to those tortfeasors who violate Wis. Stat. § 26.20, i.e., railroad corporations. Since no railroad corporation is involved in this case, Markel argues that it cannot be penalized under § 26.21(1). Markel reasons that § 26.21(1) is limited by § 26.20 because § 26.21(1) states "[i]n addition to the penalties provided in s. 26.20." Markel also asserts that other portions of chapter 26, Wisconsin case law, and the statute's legislative history all support the interpretation that § 26.21(1) applies only to railroad corporations. Heritage Farms, on the other hand, argues that § 26.21(1) applies to all tortfeasors. Heritage Farms reasons that nothing in the statutory provision specifically limits the statute's scope to a specific class of tortfeasor such as railroad corporations, and to apply § 26.21(1) in such a manner would lead to absurd results. Heritage Farms supports its interpretation by relying on the legislative history, historical context, and the Wisconsin Department of Natural Resources' (DNR) conclusion that § 26.21(1) is not limited to a specific class of tortfeasor.
¶13 We agree with Heritage Farms, and as a result, we reverse the court of appeals' decision. We conclude that Wis. Stat. § 26.21(1) is not limited to a specific class of tortfeasor such as a railroad corporation, and a violation under Wis. Stat. § 26.20 is not a prerequisite for applying § 26.21(1). The following four reasons support our conclusion.
¶14 First, the text of
Wis. Stat. § 26.21(1) does not limit that statute's application to
railroad corporations. To interpret the
statute consistent with Markel's argument would require us to insert words into
the statute. Markel argues as though the
phrase "railroad corporation" was inserted as follows: "In
addition to the penalties provided in s. 26.20, the
¶15 Second,
the statutory history[10]
of Wis. Stat. § 26.21(1) supports the interpretation that the current
version of § 26.21(1) is not limited to railroad corporations and does not
require a violation of Wis. Stat. § 26.20 in order to be applied. Before 1977, the two statutory sections were
specifically linked together by the phrase "such fires." The 1905 version of § 26.21(1) allowed
recovery of additional penalties for those fires——"such fires"——which
were a violation of the 1905 version of § 26.20. The 1905 version of § 26.21(1),
"Civil liability for forest fires" read as follows:
In addition to the penalties
provided in [section 1494-57], the
¶16 Third,
if the legislature meant to limit Wis. Stat. § 26.21(1)'s application to
only violators of Wis. Stat. § 26.20, then § 26.21(1) would have been
more appropriately inserted in § 26.20.
Section 26.20 has its own penalty section. See
¶17 Fourth,
although not determinative, we find it significant that the DNR has concluded
Wis. Stat. § 26.21(1) applies to all tortfeasors and not just
railroads. For example, the burning
permit, which was issued by the DNR in this case, contains the following warning:
"If your fire escapes and becomes a forest fire you can be charged for all
costs of extinguishing the fire and, in civil action, may be charged for twice
the value of any property damaged or destroyed." The DNR has had the opportunity to consider
¶18 Markel,
however, makes several arguments in support of limiting Wis. Stat.
§ 26.21(1) to only those who violate Wis. Stat. § 26.20——primarily
railroad corporations. Markel asserts
that the phrase in § 26.21(1), "[i]n addition to the penalties in s.
26.20," means that § 26.21(1) is limited to railroad corporations who
have violated § 26.20. Markel argues that to receive double
damages under § 26.21(1), one must have violated § 26.20. Thus, a violation of § 26.20 is a
prerequisite to receiving the benefits of § 26.21(1). Markel relies primarily on The American
Heritage Dictionary of the English Language (4th ed. 2000) to define the
word "addition."
"Addition," Markel asserts, means "the act or process of
adding, especially the process of computing with sets of numbers so as to find
their sum" or "something added, such as a room or section appended to
a building." Markel thus argues
that the penalties of § 26.21(1)
must be added to those in § 26.20.
¶19 While we have often utilized the dictionary to assist us in statutory interpretation,[13] Markel fails to define the correct term. Markel defines the word "addition," but the phrase in question is "in addition to."[14] This phrase means "[o]ver and above; besides." The American Heritage Dictionary of the English Language 20 (3d ed. 1992). Thus, the phrase "in addition to" does not mean that Wis. Stat. § 26.21(1) applies only when it is being added to penalties under Wis. Stat. § 26.20. Rather, the phrase "in addition to" means besides the penalties provided in § 26.20, the penalties of § 26.21(1) may also be applicable.[15]
¶20 The phrase "in addition to," however, does serve a useful
purpose. As a principle of statutory
interpretation, a specific statute generally prevails over a general statute. State
v. Anthony D.B.,
2000 WI 94, ¶11, 237
¶21 Markel
also argues that Wis. Stat. § 26.21(1) is limited to railroad corporations
because Wis. Stat. § 26.14 is not mentioned in § 26.21(1), and
§ 26.14 addresses all civil liability rather than just civil liability of
railroads.[17] Markel's reliance on § 26.14 is
unpersuasive because the 1905 version of § 26.21(1) was created over 20
years before § 26.14 was created in 1927, and as a result, it is not
surprising that § 26.14 is not referenced in § 26.21(1). Furthermore, if § 26.21(1) was limited
to violations of § 26.20, one who is liable for damages under § 26.14
could then escape the penalties of § 26.21(1). However, the legislature chose the phrase
"forest fires," in both statutes instead of limiting either
statute. There is simply no indication
that the legislature intended as Markel suggests.
¶22 Markel relies on Kimberly-Clark Corp.
v. Public Service Commission of Wisconsin to assert that "'where a
statute with respect to one subject contains a given provision, the omission of
such provision from a similar statute concerning a related subject is
significant in showing that a different intention existed.'" Kimberly-Clark, 110
Persons causing fires in violation of this chapter shall be liable to the state in an action for debt, to the full amount of all damages done to the state lands and for all expenses incurred by the towns fighting forest fires and shall be liable to municipalities in an action for debt, to the full amount of all damages to the municipal lands and for all expenses incurred by the municipalities fighting such fires.
¶23 While the principle relied upon by Markel is an important tool of statutory interpretation, it is not helpful in this case because of the differences between the two subsections of Wis. Stat. § 26.21. Subsection (1) is drafted from the perspective of who may bring an action, and subsection (2) is drafted from the perspective of who is the tortfeasor. This plain reading of the subsections leads us to question the purported "similarity" of the provisions, and thus, the application of this principle of statutory interpretation is not appropriate in this case. Moreover, it seems peculiar that two subsections of the same section would implicitly vary so greatly in scope but not do so more explicitly. Therefore, we do not find Markel's reliance on this principle persuasive in the case at hand.
¶24 Finally, Markel argues that the three cases "to have ever
cited Wis. Stat. § 26.21(1),"
or any predecessor to that statute, were all lawsuits involving railroad
corporations, and thus, this is further proof that § 26.21(1) applies only to railroad
corporations. Markel relies on Bonnell
v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 158
¶25 However, Markel's reliance on these cases is unpersuasive for two reasons.
¶26 First, all of these cases were decided before the legislature's 1977 revisions. Recall that the legislature acted in 1977 to remove the "such fires" language from Wis. Stat. § 26.21(1) and replace it with the broader language "forest fires." Thus, a reasonable interpretation prior to 1977 was that recovery under § 26.21(1) was limited to situations where a fire occurred due to a violation of Wis. Stat. § 26.20 and "such fires" caused by a railroad corporation, given most of the predecessor statute applied only to railroad corporations. Thus, it makes sense that these cases before 1977 involved railroad corporations.
¶27 Second, none of these cases cited by Markel conclude that Wis.
Stat. § 26.21(1)
is specifically limited to railroad corporations. Rather, these cases reference § 26.21(1) for other
reasons. See Bonnell, 158
¶28 Accordingly,
we conclude that recovery under Wis. Stat. § 26.21(1) is not limited to a specific class of
tortfeasor such as railroad corporations, and a violation under Wis. Stat. § 26.20 is not a
prerequisite for the
applicability of § 26.21(1).
¶29 As a practical matter, it makes sense that the legislature would choose to severely punish all forest fire starting tortfeasors rather than just railroads, given the importance of forests and ecology in this state. Our forests are important not only to those who enjoy recreational activities and hunting, but they are also important to our ecology and our economy.
¶30 The people of
¶31 A 2004 report states that
¶32 Despite the evident success of the timber industry, "[i]n the
early lumbering days, more timber was lost to fire than was actually
harvested." See Wis.
Cartographers' Guild, supra, at 47.
"Wasteful timber-cutting practices led to disastrous forest fires,
including the deadly Peshtigo [
¶33 However, railroad corporations have not been the single or even the
predominant offender when it comes to forest fires. Historically there have been a wide range of
offenders who have shouldered the responsibility for causing forest fires.
¶34 Early forestry legislation also lends support to the conclusion that a wide range of causes have been responsible for causing forest fires. See Mitchell & LeMay, supra, at 15-16 (identifying legislation between 1826—1895 aimed at limiting forest fires by punishment for starting fires and leaving them unextinguished, punishment for fire escaping one's own land, prohibiting burning between July—October, and requiring spark preventers for many types of engines).
¶35 Accordingly, given the importance of the forests to this state and the fact that forest fires have not been predominantly caused by railroad corporations, it makes sense that the legislature has chosen to severely punish all those responsible for starting a forest fire.
B. Gross negligence
¶36 Markel asserts that Wis. Stat. § 26.21(1) is not applicable in this case because
Heritage Farms did not prove that Markel acted with "gross
negligence." Markel's argument that
"gross negligence" must be proven is based on this court's 1914
decision in Bonnell, which interpreted the phrase "wilfulness, malice or negligence" in the 1905
version of § 26.21(1) to require "gross negligence." Bonnell, 158
¶37 We conclude that the plain language of Wis. Stat. § 26.21(1) does not require "gross negligence." The relevant portion provides in part:
[One] may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence. . . .
¶38 In 1914, this court concluded in Bonnell that "gross
negligence" was required under the 1905 version of Wis. Stat. § 26.21(1). Bonnell, 158
¶39 The
concept of "gross negligence," however was abolished by this court in
1962. Bielski, 16
¶40 While this abolishment alone would not necessarily alter the past
interpretation in Bonnell, the legislature's actions subsequent to our
1962 abolishment lead us to conclude that "gross negligence" is not
the standard in Wis. Stat. § 26.21(1). In 1977, the legislature repealed and
recreated § 26.21,
which resulted in substantive changes and dividing the statute into two
subsections. See § 448u, ch. 29, Laws of
1977 (emphasis added). We generally
presume that when the legislature enacts a statute, it is fully aware of the
existing laws. County of Dane v.
Racine County, 118
¶41 Because the legislature could not have been more clear in 1977 when
it repealed and recreated
IV. CONCLUSION
¶42 We conclude that Wis. Stat. § 26.21(1) is not limited to a specific class of tortfeasor such as a railroad corporation, a violation under Wis. Stat. § 26.20 is not a prerequisite for the applicability of § 26.21(1), and the term "negligence" in § 26.21(1) does not require a showing of "gross negligence."
By the Court.—The decision of the court of appeals is reversed.
¶43 PATIENCE DRAKE ROGGENSACK, J. (dissenting). I write separately because I have concluded that Wis. Stat. § 26.20 (2007-08) establishes affirmative obligations for railroads and others who use spark-producing engines, such as locomotive, donkey, traction and portable engines, in areas that may cause forest fires, and that Wis. Stat. § 26.21(1) expands the potential award of damages caused by forest fires, from that which would otherwise be permitted under the common law, if the fires arise because of a failure to meet an obligation set out in § 26.20. Because there is no claim that any defendant failed to meet any § 26.20 obligation, § 26.21(1) has no application to the claims of the plaintiffs in this case. Accordingly, I would affirm the decision of the court of appeals and I respectfully dissent from the majority opinion.
I. BACKGROUND
¶44 This case arose out of a fire that the jury found was set by Jeffrey Knaack on March 3, 2003 at the Lake of the Woods Campground property and was not properly extinguished, permitting it to become the Crystal Lake Fire on April 14, 2003. Knaack had a burn permit issued by the Department of Natural Resources (DNR) that permitted him to lawfully set the fire at the Lake of the Woods Campground.
¶45 When the fire re-ignited and became the Crystal Lake Fire, it caused extensive damage to the plaintiffs' properties. To recover their damages, the plaintiffs brought common law claims of negligence, trespass and nuisance, which they tried before a jury. They succeeded on each claim.[19] The jury awarded damages in excess of $500,000.
¶46 Because the plaintiffs alleged that the jury award should be doubled pursuant to Wis. Stat. § 26.21(1) and the circuit court concluded that § 26.21(1) did not apply to their claims, the plaintiffs appealed to the court of appeals. The court of appeals affirmed the circuit court's conclusion that § 26.21(1) did not apply.[20] Heritage Farms, Inc. v. Markel Ins. Co., 2008 WI App 46, ¶17, 309 Wis. 2d 217, 747 N.W.2d 762. Accordingly, it is the interpretation and application of § 26.21(1) that is the central focus of this review.
II. DISCUSSION
A. Standard of Review
¶47 The questions presented by this case require the interpretation and
application of Wis. Stat. § 26.20
and Wis. Stat. § 26.21(1). The interpretation and application of
statutes present questions of law that we review independently of the decisions
previously made by the circuit court and the court of appeals, but benefiting
from their analyses. Marder v. Bd. of
Regents of the Univ. of
B. Statutory Interpretation
1. General principles
¶48 Statutory interpretation "begins with the
language of the statute." State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI
76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
We assume that the meaning of a statute is expressed in the words the
legislature chose.
¶49 If our focus on the statute's
language yields a plain, clear meaning, then there is no ambiguity, and the
statute is applied according to its plain terms.
¶50 A review of statutory history is often helpful. "[S]tatutory history is part of a plain
meaning analysis." Richards v.
Badger Mut. Ins. Co., 2008 WI 52, ¶22,
309
2. Statutory history
¶51 A review of the statutory history of Wis. Stat. § 26.20 and Wis. Stat. § 26.21(1) is very
helpful in interpreting those sections because their relationship to each other
has remained constant over the years. As
we have explained, statutes should not be read in a vacuum, but must be read with
an understanding of other statutes, in context, in order to best determine
their plain meaning. Burbank Grease
Servs., LLC v. Sokolowski, 2006 WI 103, ¶26, 294
¶52 When first enacted, Wis. Stat. § 26.20 and Wis. Stat. § 26.21(1) were Wis. Stat. ch. 61, § 1494-57 (Supp. 1906) and Wis. Stat. ch. 61, § 1494-58 (Supp. 1906), respectively, of the 1905 statutes.[21] In 1905, § 1494-57 imposed an affirmative obligation on those with "any logging locomotive, donkey or threshing engine, railway locomotive and all other engines, boilers and locomotives operated in, through or near, forest, brush or grass land," to employ netting on the engines "to give the most practicable protection against the escape of sparks, cinders or fire" from the engines. § 1494-57.
¶53 Wisconsin Stat. § 1494-57 also set out penalties to be levied by the State for failing to comply with the affirmative obligations contained in § 1494-57. The penalty provision provided that "[a]ny corporation by its officers, agents or employes, wilfully violating the provisions of this section shall be liable to a fine" of $50 to $500 for each violation. § 1494-57. The plain language of the penalty provision shows that penalties did not come into play until an affirmative obligation set out in § 1494-57 had not been met. Stated otherwise, no penalty could be levied unless the person who was obligated to perform certain tasks by § 1494-57 violated the provisions of § 1494-57.
¶54 Wisconsin Stat. § 26.20 continues to set out affirmative obligations relative to spark-producing engines. For example, it provides that all "road locomotives operated on any railroad" must have their engines equipped with spark arresters that meet or exceed the minimum performance and maintenance standards established by the State to reduce the chance of sparks escaping from the engine. § 26.20(2).[22]
¶55 Wisconsin Stat. § 26.20 also continues to provide for penalties to be levied by the State on those who fail to meet their affirmative obligations when operating spark-producing engines. § 26.20(9). Subsection (9) provides:
(a) Any corporation, by its officers, agents, or employees, violating this section, shall forfeit not more than $500.
(b) Any corporation, by its officers, agents or employees, willfully violating this section shall be fined not more than $1,000.
(c) Any conductor, individual in charge of a train or officer, agent or employee of a railway who violates this section shall forfeit not more than $500.
As was the case with Wis. Stat. ch. 61, § 1494-97 (Supp. 1906), the provisions of the penalty subsection of § 26.20 do not come into play until one who has an affirmative obligation set out in § 26.20 fails to meet such an obligation and therefore, is "violating this section." § 26.20(9).
¶56 The relationship between the affirmative obligations set out in various subsections of Wis. Stat. § 26.20 and the penalty provision of § 26.20(9) assists in understanding the plain meaning of Wis. Stat. § 26.21(1). This is so because § 26.21(1) begins, "In addition to the penalties provided in s. 26.20." After that threshold is met, § 26.21(1) provides an opportunity to double the damages a property owner may recover. However, the damages that the property owner suffered must have arisen from a failure to meet an affirmative obligation set out in § 26.20, because it is only from a violation of one of § 26.20's provisions that a penalty may be levied by the State. Stated otherwise, a plaintiff employing § 26.21(1) could never obtain damages that are "[i]n addition to the penalties provided in s. 26.20" if the conduct that caused the fire did not violate § 26.20, thereby permitting the State to assess a penalty under § 26.20.[23]
¶57 Additionally, were it not that the damages that a property owner
seeks to double under Wis. Stat. § 26.21(1)
arose from the same conduct that could support a penalty under Wis. Stat. § 26.20(9), the phrase,
"In addition to the penalties provided in s. 26.20" would have no
meaning. It is a basic premise of
statutory construction that all words in a statute must be given meaning. Kelley Co. v. Marquardt, 172
¶58 My reading of Wis. Stat. § 26.21(1) is consistent with the statutory history of § 26.21(1). In 1905, Wis. Stat. ch. 61, § 1494-58 (now § 26.21(1)) provided in relevant part:
In addition to the penalties provided in the preceding section of this act, the United States, the state, the county or private owners, whose property is injured or destroyed by such fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through wilfullness, malice or negligence.
In 1905, the "preceding section of this act" was Wis. Stat. ch. 61, § 1494-57, the predecessor of Wis. Stat. § 26.20. In 1905, a property owner could employ the double damage provisions of § 1494-58 if there had been a violation of the "preceding section." Then, the "preceding section" was § 1494-57. Without failing to meet an affirmative obligation set out in § 1494-57, there would be no grant of power to the State to assess a penalty under § 1494-57, the section preceding § 1494-58. Therefore, in 1905, a property owner could not avail himself of double damages for a fire that was not caused by a failure to meet the affirmative obligations set out in § 1494-57.
¶59 I note that Wis. Stat. § 26.21(1) remains in much the same form as it was when enacted in 1905. It provides in relevant part:
In addition to the penalties provided in s. 26.20, the United States, the state, the county or private owners, whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence.
The provision for double damages and attorney fees remains connected to the preceding statute, now Wis. Stat. § 26.20, because § 26.21(1) directs that it is available "[i]n addition to the penalties provided in s. 26.20." This linkage between the two statutes has been constant since 1905.
¶60 Furthermore, the term "in addition to" is found in other
sections of ch. 26, and in each instance, the relief that is "in addition
to" that previously provided is based on the same conduct for which a
previous penalty could have been assessed.
For example,
¶61 Accordingly, I conclude that the plain meaning of Wis. Stat. § 26.21(1) requires that a claim for double damages and attorney fees under § 26.21(1) must be based on a fire that arose because of a defendant's failure to meet an affirmative obligation under Wis. Stat. § 26.20. Because none of the plaintiffs' claims arose because of a fire caused by a failure to meet an affirmative obligation set out in § 26.20, § 26.21(1) has no application here.
C. Majority opinion
¶62 The majority opinion asserts that Wis. Stat. § 26.21(1) is not limited to railroads.[24] I agree that § 26.21(1) is not necessarily limited to railroads, but that does not answer the question that the case really poses, which is whether § 26.21(1) is applicable when the conduct underlying the lawsuit does not violate Wis. Stat. § 26.20. My analysis leads me to conclude that § 26.21(1) is not applicable in those circumstances. Furthermore, as I have explained above, no words need be added to or subtracted from § 26.21(1) to conclude that it does not apply to the plaintiffs' claims.
¶63 The major problem with the majority opinion's analysis is that while it acknowledges the historic link between conduct that violated Wis. Stat. ch. 61, § 1494-57 (Supp. 1906) (now Wis. Stat. § 26.20) and a claim for damages under Wis. Stat. ch. 61, § 1494-58 (Supp. 1906) (now Wis. Stat. § 26.21(1)),[25] it does not analyze how the plaintiffs' claims for damages are "[i]n addition to the penalties provided in s. 26.20." Instead, it posits that were the introductory phrase not present, a plaintiff who has suffered damages caused by a fire may be met with the defense that a State penalty imposed under § 26.20(9) is the only consequence of the fire.[26]
¶64 However, damages based on common law claims for negligence,
trespass and nuisance have long been available, as the plaintiffs' jury verdict
demonstrates. Furthermore, statutes are
not to be interpreted as changing the common law unless the legislature
explicitly states that it is its purpose to do so. Kranzush v.
¶65 The majority opinion also concludes that there is no longer a linkage between Wis. Stat. § 26.20 and Wis. Stat. § 26.21(1) because in 1977 the legislature placed the provisions in two separate sections and changed the words "such fires" to "forest fires."[27] I am unpersuaded.
¶66 First, the form the legislature used for statutes in 1905 was to include many provisions of ch. 264 of the Laws of 1905 in one section, Wis. Stat. ch. 61, § 1494 (Supp. 1906), with serial sections for differing provisions. Second, "forest fire" had a statutory definition in 1977;[28] however, forest fire had no statutory definition in 1905. Furthermore, the term, "forest fires," was used in the title of Wis. Stat. ch. 61, § 1494-58 (Supp. 1906), just as it is used in the title of Wis. Stat. § 26.21 today. Third, it is just as logical that "such fires" was replaced with "forest fires" because the legislature wanted to clarify that runaway fires that were started by sparking engines, but burned prairie grasslands rather than forests, came within the ambit of § 26.21(1), even though forests were not burned by such runaway fires.[29] However, whatever the reason for the statutory amendment from "such fires" to "forest fires," none of the proffered reasons in the majority opinion do anything to explain the introductory phrase, "[i]n addition to the penalties provided in s. 26.20," which phrase draws into § 26.21(1) the conduct of Wis. Stat. § 26.20.
¶67 Furthermore, I do not agree that the DNR's use of language in the burn permit that is similar to that found in Wis. Stat. § 26.21(1) is the DNR's interpretation of § 26.21(1); or even if it were, that it is of any assistance in determining the plain meaning of § 26.21(1). First, nowhere on the burn permit is there a reference to § 26.21(1), although Wis. Stat. § 26.12(5), Wis. Stat. §§ 19.31-19.39, Wis. Stat. § 23.45 and Wis. Stat. § 25.11(2) are referenced. Second, the language follows the question: "What is the penalty for burning without a permit?" While it may have been possible to argue that this language created a contract with the DNR, of which the property owners who suffered fire damage were third party beneficiaries, that claim is not before the court.
¶68 And finally, the majority opinion contends that Wis. Stat. § 26.21(1) "is drafted from the perspective of who may bring an action."[30] While I do not disagree with that statement, it does not encompass the complete directive of the statute. The statute speaks to particular conduct, through its reference to the penalties of Wis. Stat. § 26.20, and those penalties can be afforded only for fires that were caused by failing to meet a statutory obligation of § 26.20. Section 26.21(1) also uses the term "the fires," rather than "a fire," indicating that not all fires that cause damage to property come within the ambit of § 26.21(1).
III. CONCLUSION
¶69 I have concluded that Wis. Stat. § 26.20 establishes affirmative obligations for railroads and others who use spark-producing engines, such as locomotive, donkey, traction and portable engines, in areas that may cause forest fires, and that Wis. Stat. § 26.21(1) expands the potential award of damages caused by forest fires, from that which would otherwise be permitted under the common law, if the fires arise because of a failure to meet an obligation set out in § 26.20. Because there is no claim that any defendant failed to meet any § 26.20 obligation, § 26.21(1) has no application to the claims of the plaintiffs in this case. Accordingly, I would affirm the decision of the court of appeals and I respectfully dissent from the majority opinion.
¶70 I am authorized to state that Justice MICHAEL J. GABLEMAN joins this dissent.
[1] Heritage Farms, Inc. v. Markel Ins. Co., 2008 WI App 46, 309 Wis. 2d 217, 747 N.W.2d 762.
[2] We will refer to the plaintiffs collectively as "Heritage Farms."
[3] All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. The full text of Wis. Stat. § 26.21(1) can be found in ¶10.
[4] A burning permit for
[5] The defendants include Knaack, Knaack's personal liability carrier, American Family Mutual Insurance Company, Lake of the Woods Campground, and its commercial liability insurer, Markel Insurance Company.
[6] The circuit court entered judgment on the verdict, and with costs and interest, the defendants were liable to Heritage Farms in the amount of $637,267.72.
[7] While nothing
specifically limits Wis. Stat. § 26.20
to only railroad corporations, most of the statutory provisions in § 26.20 involve only
those who operate on or maintain a railway.
However,
[8] We use "railroad corporation" rather than "violator of § 26.20" because the defendants in this case argue that § 26.21(1) applies only to railroad corporations. In this case we need not reach the determination of whether Wis. Stat. § 26.20 applies only to railroads.
[9] See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶39, 271 Wis. 2d 633, 681 N.W.2d 110 (citing to the United States Supreme Court, Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992), asserting that "[w]e have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there."); 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction (7th ed. 2007) (§ 46:3, "'Expressed' intent," stating "[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will"; § 46:6, "Each word given effect," stating "it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose"; § 47:23, "Expressio unius est exclusio alterius," stating "where a form of conduct, . . . there is an inference that all omissions should be understood as exclusions"; § 47:38, "Insertion of words," stating "[i]n construing a statute, it is always safer not to add to or subtract from the language of a statute unless imperatively required to make it a rational statute") (internal punctuation and footnotes omitted).
[10] By statutory history, we are referring to the previously enacted versions of the statute, which have been subsequently amended by the legislature. Wisconsin Stat. § 26.21(1) was originally enacted in 1905; see § 18, ch. 264, Laws of 1905. It was referenced as Wis. Stat. § 1494-58; see Wis. Stat. ch. 61, § 1494-58 (Supp. 1906). Revisions relevant to this appeal were made in 1927 and 1977. Wisconsin Stat. § 26.20, was enacted in 1905; see § 17, ch. 276, Laws of 1905. It was referenced as Wis. Stat. § 1494-57; see Wis. Stat. ch. 61, § 1494-57 (Supp. 1906).
[11] The 1905 version of Wis. Stat.
§ 26.20 was applicable to more than just railroad corporations. Section 1494-57 applied to "any logging
locomotive, donkey or threshing engine, railway locomotive and all other
engines, boilers, and locomotives."
See
[12] See
[13] State v. Sample, 215
[14] See Kalal, 271
[15] The dissent states that "a plaintiff employing § 26.21(1) could never obtain damages that are '[i]n addition to the penalties provided in s. 26.20' if the conduct that caused the fire did not violate § 26.20, thereby permitting the State to assess a penalty under § 26.20." See dissent, ¶56. According to the dissent's logic, the "in addition to the penalty" language really reads "when there is a violation of § 26.20." That is not a plain language reading of the statute.
[16] While this argument was not made by the defendants in this case, it is still relevant to address. A similar argument was made successfully in Missouri, K. & T. Ry. Co. v. Jackson, 174 F.2d 297, 301-02 (10th Cir. 1949).
[17] Wisconsin Stat. § 26.14,
"
(9)(a) Nothing in this chapter shall be construed as affecting the right to damages. The liability of persons for damages is not limited to the destruction of merchantable timber but may also include the value of young or immature forest growth.
(b) Any person who sets a fire on any land and allows such fire to escape and become a forest fire shall be liable for all expenses incurred in the suppression of the fire by the state or town in which the fire occurred. An action under this paragraph shall be commenced within the time provided by s. 893.91 or be barred.
[18] This report may be found at http://www.bioeconomy.wi.gov/ (click on "Documents" and under subheading "Papers" click on "October 17, 2005, Forest Products Background Piece"). This website is the homepage of "The Consortium on Biobased Industry." The consortium was created by Governor Doyle's executive order #101 "Relating to the Development and Promotion of Biobased Industry" (dated May 27, 2005).
[19] Although the plaintiffs argue in their briefs that they may also have a breach of contract claim based on the burn permit the DNR issued to Knaack, no breach of contract claim was submitted to the jury. Accordingly, it is not an issue that I will address here.
[20] The court of appeals concluded that Wis. Stat. § 26.21(1) applies only to railroads. Heritage Farms, Inc. v. Markel Ins. Co., 2008 WI App 46, ¶17, 309 Wis. 2d 217, 747 N.W.2d 762. As will become apparent in this dissent, I conclude that § 26.21(1) applies when an affirmative obligation set out in Wis. Stat. § 26.20 has not been met. It is not necessary to decide whether railroads are the only persons for whom § 26.20 establishes affirmative obligations.
[21] Wisconsin Stat. § 26.20 and Wis. Stat. § 26.21(1) were also known as sections 17 and 18, respectively, of ch. 264 of the Laws of 1905.
[22] Most of the provisions of Wis. Stat. § 26.20 set out obligations that are specifically limited to railroads. For example, § 26.20(4) requires that those who operate a railway must clear the right-of-way of all brush, logs and material that may provide fuel for a fire. Section 26.20(5) requires corporations operating railroads to prevent their employees from depositing live coals or ashes upon the tracks outside of the yard limits, unless those coals are immediately extinguished. And § 26.20(7) requires those operating a railroad during the dangerously dry season to provide fire patrols when requested to do so. However, the affirmative obligations of those operating engines that produce sparks is not necessarily limited to railroads, as § 26.20(8) permits inspection of "any locomotive, donkey, or threshing engine, railway locomotive, and all other engines, boilers, and locomotives operated in, through or near forest, brush, or grass land."
[23] Lest there be confusion, I
point out that whether the State actually assesses a penalty that is
"provided" under Wis. Stat. § 26.20(9) is not determinative of
whether a Wis. Stat. § 26.21(1) claim is available. Rather, it is the type of conduct that drives
the availability of a remedy under § 26.21(1), just as it was the type of
conduct that was determinative of whether a remedy under Wis. Stat. ch. 61,
§ 1494-58 (Supp. 1906) was available.
As we explained in Bonnell v.
Wisconsin Stat. § 26.21(1) states that it comes into play "[i]n addition to the penalties provided in s. 26.20." It does not say that § 26.21(1) may be employed in addition to the penalties "actually assessed" under Wis. Stat. § 26.20. Accordingly, the State's action or lack thereof in assessing a penalty that is provided in § 26.20 does not affect the applicability of § 26.21(1).
[24] Majority op., ¶14.
[25] Majority op., ¶15.
[26] Majority op., ¶20.
[27] Majority op., ¶15
[28] The definition of forest fires was set out in Wis. Stat. § 26.11(2) in 1977; it now appears in Wis. Stat. § 26.01(2):
"
[29] Ever since forest fire was defined in the statutes, forest fire has included fires that did not burn trees, e.g., fires that burned marsh lands, as well as those fires that did burn forests.
[30] Majority op., ¶23.