*1 Connie L. Lentz Lentz, Thomas J. her husband,
Plaintiffs-Appellants,
v. Defendant-Respondent.† David N. Young, Appeals Court of 2, 1995. argument No. 94-3335. May Oral June Decided 1995. (Also 451.) reported in 536 N.W.2d to review denied. †Petition *5 and were briefs there
For the plaintiffs-appellants of Robin- Lokensgard by Mary Taylor argument oral Peterson, son, Robinson, Berk & Cross Appleton. a brief there was defendant-respondent For the Werner, Thomas W. Johnson and oral argument Johnson, S.C. of New London. & Lindgren JJ. Cane, P.J., Myse, and LaRocque Before (Lentz) appeal and Tom Lentz MYSE, J. Connie their tort claims dismissing a summary judgment Lentz con- Young. David employer, against exclusivity the defense of waived Young tends that (WCA) fail- Act the Worker's Compensation under in that the trial court it his and pleadings to raise ing summary judg- motion for hearing Young's erred by 802.08(1), the time permitted by ment after § STATS., Lentz further argues order. scheduling and court's the WCA concluding court erred by trial against harassment action bar her sexual precluded that an inten- Young. employer's Because we conclude of an is not tional sexual harassment we WCA, parameters "accident" within and trial court's remand judgment reverse the for further proceedings. cause
FACTS as Young Lentz for a waitress began working or in that position approx- 1984 continued 13, 1990, On Lentz filed imately years. July six threatened, that he complaint against alleging and touched her in an offensive manner over assaulted further one-year alleged the course of a period. in a of actions continuous series Young engaged of her privacy. that constituted an offensive invasion *6 alleged Young's Lentz that actions her emo- caused required tional distress and that was she to seek injuries. medical treatment as a of result her subsequently scheduling The trial court entered a requiring pretrial order that all motions be scheduled by April and 25, filed The 1991. court scheduled the September trial date for 10.
Approximately Young's four trial, months before deposed During deposition, counsel Lentz. the Lentz Young stated that her would call into his office while working sexually sugges- explicit she was and make Specifically, Young tions to her. Lentz testified that up "[h]e'd told her like to take me his because house [his gone wife] was and take me to bed me and show good time. time I One was in office he pants T said, and something you,' grabbed have he and his and pants." he had an in erection his Lentz further testified Young "grab" that would and "touch" her at work. Young Lentz that stated would follow her outside of telephoned work and he her on several occasions sexually explicit at home to make to her remarks and thirteen-year-old her daughter. September pretrial
On held, was conference damages. produced and Lentz her itemization of The damages itemization of revealed that Lentz was seek- ing damages arising employment her out of with Young. Contending had been he unaware that damages, Young's such would seek counsel filed enlarge motions to to file a for sum- time motion mary judgment summary judgment seeking and for against dismissal because the WCA barred suit employer. argued Lentz, however, the motions raised an affirmative or a defense matter of avoidance statutory that was not filed within time limit. Young responded that not while the motions were filed period, statutorily permitted time
within filing enlarge time for was warranted motion delay producing of in her itemization because learning damages prevented that Lentz from seeking arising employment damages of out her was pretrial conference. until the Young's motion did not found that The trial court defense, but rather an issue affirmative raise an jurisdiction subject not waived. that could be matter case from the trial The court then removed the trial hearings Young's further on and scheduled calendar support parties in filed memoranda motions. Both positions, Lentz submitted an affidavit their *7 Young at harassed her both work stated that which she Young called her at home at home. She stated that and harassing sexually explicit and statements and made Young work, at her. further stated while She placed pinched on her chest her buttocks and his hands "private areas." and hearing,
At of the second the trial the conclusion injuries from work- that Lentz's stemmed court found her exclusive related incidents and that WCA was remedy. Additionally, that all of the the court found complained Lentz took and batteries which assaults place these claims were therefore work, at and Accordingly, the trial court under the WCA. covered Young's granted motions and dismissed complaint. TIME PERMIT
DISCRETION TO EXPAND AND JUDGMENT MOTION FOR SUMMARY that the trial court erred Lentz first contends Young exclusivity permitting in his to raise the defense timely summary judgment not motion because it was may only party § move filed. Under STATS., 802.08(1), 464 for summary judgment within eight months after the filing summons and or complaint within the time set scheduling order under 802.10, Stats. In § this case, Lentz notes that filed Young his summary judgment motion approximately fifteen months after the summons and complaint were filed and approxi- mately five months after the time set in the scheduling order. Lentz argues the trial court has the discre- tion under 801.15(2)(a), STATS., § expand time filing summary judgment motions for cause shown and upon just terms, where the only failure to act was the result of excusable neglect. Here, however, Lentz con- tends that as of the date of the conference, scheduling Young was aware that she was work-related claiming and, damages therefore, his failure to file timely summary judgment motion was not the result of excus- able neglect. Accordingly, claims the trial court erroneously exercised its discretion by permitting to file the motion.
The eight-month deadline for filing motions under
802.08(1), Stats.,
§
is essential
to the consistent
administration
orderly
justice. However,
the eight-
month deadline is not an inflexible rule that
the trial
See First
courts must
Nat'l Bank v. Han
blindly apply.
sen, 422, 427-28,
Wis. 2d
267 N.W.2d
*8
(1978). The
of
filing motions is a matter
that directly
impacts the trial court's administration
of its calendar.
Trial courts have the inherent power to control
their
dockets to achieve economy of time and effort.
Ney
See
Vorwald,
lan v.
124
85,
Wis. 2d
94,
648,
368 N.W.2d
v.
653
(1985); Rupert
Co.,
Home Mut. Ins.
1,
138 Wis. 2d
(Ct.
1987).
7,
465 94, 2d 368 124 Wis. at Neylan, business. judicial trial court with this a power, 653. Consistent N.W.2d at a discretion, its permit exercise of in the sound may, time limit statutory the file a motion beyond to party 802.08(1). the trial in We not disturb will contained in the conduct of a discretionary determinations court's Alexan- prejudiced. have been parties unless the trial 414 N.W.2d der v. Riegert, 294, 298, 141 Wis. 2d (1987). any the devoid of indication case, In this record is to file his permit Young court's decision to that the trial A was to Lentz. prejudicial motion summary judgment matter, held and Lentz hearing was on contested hearing for the and time to given prepare was adequate to on the issue. fair be heard opportunity a Further, note of purpose requiring par we within judgment eight to file motions summary ties of the summons and is filing complaint months of as a judgment from using summary prevent parties 427-28, 267 Hansen, 84 Wis. 2d at N.W.2d tactic. delay the Hansen court noted: "[W]here a belated at 370. As a is on summary judgment predicated legal motion for case, the motion does not totally issue dispositive of rather expedites disposition cause but delay abuse its discre and the trial court does not litigation, it." Id. at 427-28, at 267 N.W.2d 370. tion permitting was Here, exclusivity provision dispositive the WCA Accordingly, litigation case. expedite resources, time and judicial avoid waste potential its reasonably court exercised discretion the trial summary to file the judgment permitting 802.08(1), after the time § motion established expired. had STATS.,
WAIVER OF AFFIRMATIVE DEFENSE that contends under exclusivity remedy WCA is an affirmative defense or avoidance that must be raised in the defendant's pleadings. Because Young failed to this raise defense in his pleadings, she that court argues the trial erred to by failing conclude defense was waived. See 802.02(3), § STATS.; Oetzman v. Ahrens, 145 560, 571, Wis. 2d 427 N.W.2d (Ct. 1988) (defendant 421, 426 must App. affirmatively forth in set his or her matter pleadings constitut any an avoidance and failure to shall ing do so result in a waiver). Young right Whether waived his assert exclusivity provision question WCA is a of law we review without deference to the trial court. See Rural Mut. v. Peterson, Ins. Co. 134 2d 165, 180, Wis. (1986). 395 N.W.2d 782
Lentz’s contention is that under 802.02(3), § a defendant waives his or her affirmative Stats., are However, defenses unless as they specifically pled. v. Mount Robinson Sanai our court noted in supreme Ctr., Medical 2d 1, 16-17, 402 711, 717 Wis. N.W.2d (1987), a defendant raise an affirmative defense may motion. Here, shows, concedes, the record and Lentz by Young exclusivity raised issue motion Robinson demonstrates, trial. As before this was an acceptable raising means of the defense. Accordingly, we conclude that did not waive exclusivity defense include it by failing as affirmative in defense his answer. It is to raise such sufficient motion, defense concededly which was done this case. *10 THE WCA OF
EXCLUSIVITY trial court erred next contends judgment for summary motion Young's granting of the WCA exclusivity provision applying because purpose is to the contrary claims to sexual harassment judg- summary We of the WCA. review and intent as the novo, methodology the same applying ment de that meth- See § 802.08(2), Stats. Because trial court. See it need not here. familiar, repeat is we odology 304, v. Kersten, 315, 2d Farms 136 Wis. Spring Green (1987). is Summary judgment 816, 820 401 N.W.2d of material if no issues genuine there are appropriate as a to judgment is entitled moving party and the fact the issue of law. Id. Additionally, we note matter remedy pro- the exclusive subject is to a claim whether of law that we review de a question of the WCA is vision 4, DILHR, 144 Wis. 1, 2d 422 v. novo. Schachtner 1988). (Ct. 906, App. 907-08 N.W.2d (1) the employee is the WCA if: A claim to subject (2) both the the time of the injury, at injury, sustains (3) WCA, at are to the employee subject employer and services is performing time of injury, employment, to his or her of and incidental out growing (5) (4) self-inflicted, and not injury intentionally is arises out causing injury or disease the accident 102.03(l)(a)-(e), STATS. Section Section employment. or "mental defines an as 102.01(2)(c), Stats., "injury” or accident to an caused employe harm physical injuries her that because Lentz contends disease ...." conduct, injuries her intentional Young's from resulted employment. of her arising out not an "accident" were exclusivity WCA's she contends Therefore, to her case. is not provision applicable 468 The WCA does not define the term "accident." Accordingly, may we look to a recognized dictionary State v. determine its common and approved meaning. (Ct. White, 180 Wis. 509 203, 214, 2d N.W.2d 1993). Webster's Dictionary App. Third New Int'l (Unabr. 1976) defines an "an "accident" as unforeseen condition; event or lack unplanned of intention or Thus, necessity." according meaning common "accident," the must result from an uninten- injury *11 tional or act. unplanned definition, this that
Despite
however, Young notes
v.
Jenson
in
Co.,
Mut. Cas.
Employers
253,
161 Wis. 2d
263, 468 N.W.2d
our
1,
(1991),
court con
supreme
"accident,"
cluded that
the term
as it is used in the
WCA, includes injuries
party
that a
sustains both from
In Jenson,
intentional
unintentional
conduct.
an
as a
of
employee
injuries
sustained
result
the inten
Id. at
tional
of
260, 468
conduct
a
co-employee.
N.W.2d
at 3-4. The
a civil
employee
action,
filed
subsequently
that an "accident"
the WCA
not
arguing
under
does
Id.
injuries
include
incurred from intentional
conduct.
at
at 4.
supreme
468 N.W.2d
Our
court disagreed.
Wisconsin
the court noted that
Citing
precedent,
an
an
be
whether
is
accident
is to
determined
injury
from
Id.
injured
the
of the
at
perspective
employee.
264, 468 N.W.2d
5. If
or
injury
unexpected
at
the
is
from
acci
unforeseen
the
is an
perspective,
injury
dent,
of
regardless
giving
whether
the conduct
rise
the accident was
Id.
or
at
intentional
unintentional.
Jenson,
264-65,
Unlike against may bring co- employee a civil action an by co-employee's injuries employee caused an Rather, the issue is whether conduct. intentional injury or her as a result of his suffered an employer's within is an "accident" conduct intentional purview an issue of first This is of the WCA. commonly Applying impression in Wisconsin. apparent accepted an "accident," it is definition employer's injury resulting intentional con- from an However, accidental. be considered would not duct given accident, we con- definition of court's Jenson is "accident" in WCA the term clude that ambiguous. Accordingly, shall look to the law we gui- policy WCA for behind the and the other states this issue. on the resolution of dance Compensation In 2A Arthur Larson, Workmen's "[a]n states that intentional Larson (1994), 13-1 Law upon employee, employer when the assault distinguished employer person con- from acts in as through agent, ground structively a common- will (Footnote omitted.) damages." The the- law action for *12 rely ory upon this states to reach which other states However, the conclusion most conclusion varies. employer's is not an intentional conduct reach is that meaning the Id. at 13- within the of WCA. an "accident" analyzes theory this as follows: 6. Larson that deliberate assault It is well established by innocent or person some third upon an will be injury." is "accidental It co-employee that the from the of assaults recalled discussion by argument difficulty presented early of intention as distin- injury such an was the result simple overcome guished from accident was expedient viewing the affair from point view of the victim rather than of the assailant, since from the point victim's of view the assault was an unexpected and untoward mishap.
However, if the gets incident into court not as a compensation claim but damage as a suit employee against an employer-assailant, it is the employer who must affirmatively plead the exclu- siveness of the act as a defense. To do this he must allege injury was an accident —and how this, can he do when he himself has deliberately produced Thus, it? from the point of view of the who, person as a matter of pleading, must allege the accidental injury, character of the the occurrence was not accidental but intentional. (footnotes omitted).
Id. at 13-11-12 Larson's is analysis equally applicable to this case. Here, Young injured his through deliberate con- duct. Lentz alleges that Young verbally abused and her, harassed "grabbed and her, touched" followed her as she went about her affairs daily and telephoned her at home to make sexually explicit suggestions and remarks. these
Despite allegations despite deliber ate nature of conduct, his suggests were injuries an accident under the WCA. Neither law nor the public policy the WCA underlying support such a result. As a New York court stated: "It would be anomalous permit defendant ... T can say, assault you with impunity and the only remedy you have is to take Workmen's which Compensation I have Garcia v. Gusmack Rest. provided you.'" Corp., (1954). 232, 233 N.Y.S.2d the Garcia Like court, we will not permit employers to use the WCA to shield them- *13 acts their intentional of consequences the
selves from as these acts accidents. by labeling to use employers Further, allowing note that we for inten from liability themselves the to shield WCA WCA. Our purpose would exceed the tional acts DILHR, v. noted in Brenne 38 Wis. 2d supreme court (1968), that the 497, 500 purpose N.W.2d 84, 91-92, 156 medical bene- provide is "to financial and of the WCA to job] are on the injured fits who [employees to the most appropriate the financial burden to allocate the consumer of and, source, ultimately the employer, intentionally injures an employer the When product." finan- to allocate the appropriate an it is not employee, with that injury public. cial burden associated of Rather, compensating employee the burden should lie exclu- the intentional act consequences This true with employer. particularly with the is sively cases, In such harassment cases. regard to sexual costs from the arising and medical physical injuries Therefore, to ade- nominal. frequently conduct are for his or her compensate quately employee be is able to necessary employee it injuries, a civil punitives, through pursue damages, including is no recourse, such there effective action. Without from their employees employer's of protecting means Therefore, conclude that where intentional conduct. we his her through or injures an employer is not an "accident" conduct, injury intentional inten- at least to the extent that such WCA, under the sexual harassment. tional conduct involves that even were we accept we note Finally, be analyzed this case must Young's argument Jenson, we would nevertheless conclude light alleges were not an accident. Lentz injuries *14 injuries Young's that she sustained her as a result of prolonged unrelenting sexually improper and conduct. alleged Young repeatedly touched her, ver- bally abused her and followed her over the course of a one-year period. Young's In fact, conduct was so pervasive extreme and Lentz, with the aid of her employees, steps Young fellow took to avoid at work. given protracted persistent Thus, nature of Young's perspective, conduct viewed from Lentz's Young's unexpected conduct was not or unforeseen. Accordingly, we conclude that even Jenson, under Young's intentional sexual harassment of Lentz was meaning not an "accident" within the of the WCA.1 Young sum, In we conclude that did not waive the exclusivity by failing plead part defense it as of his properly permitted answer and that the trial court summary judgment, to file his motion for despite eight-month statutory the fact that the limita- elapsed. tion had Further, based on our review of the purpose underlying law of other states and the employer's WCA, we conclude that an intentional sex- ual harassment of an is not an "accident" under the Therefore, WCA. we conclude that the trial by granting Young's summary court erred motion for judgment proceedings and remand the case for further opinion.2 consistent with this By Judgment reversed and cause Court. —
remanded. 1 We do not address or decide the issue whether employer may be coemployee purposes considered exception 102.03(2), assault under Stats. § 2Because erroneously we conclude that the trial court injuries found that Lentz's were the result of an accident com- pensable exclusively WCA, under the we need not address her remaining arguments. major- I concur with
CANE, (iconcurring). P.J. enunciated principles that under ity's analysis Co., Cas. 2d Mut. 161 Wis. Jenson v. Employers not (1991), were injuries 468 N.W.2d and persis- Given the protracted result of an accident. from Lentz's conduct viewed Young's nature of tent was not I conduct agree Young's perspective, *15 under Jen- Consequently, or unforeseen. unexpected "accident," continuous Young's son's definition of not an of Lentz was sexual harassment intentional of the WCA. meaning within the accident principle employers I with the Although agree under the not be allowed shield themselves should acts, I do not concur liability for intentional WCA from where it concludes reasoning majority's with the in an employer- the term "accident" effect differently is from the situation defined in Jenson. In definition of accident supreme court's Jenson, defined the term specifically our court supreme in the WCA. The court concluded the accident as used from the perspective must be determined term accident from of the perspective not the employee, injured Id. at 5. 468 N.W.2d at causing injury. person redefines the in our case now However, majority from the and views this determination term accident injury, namely causing perspective person of what our exactly opposite This is employer. to say Jenson. did in It is not sufficient court supreme Jenson involved situation co-employee The term acci- distinguishable. the case is therefore within the meanings have two different dent cannot Therefore, I would of the same statute. same sentence viewing on the basis that only affirm the trial court and persistent alleged protracted, repeated Young's not it was perspective, misconduct from majority's analysis accident. The remainder is nothing unfortunately, and, more than dicta incorrect dicta.