Russell Adams v. Northland Equipment Company, Inc.

Plaintiff-Appellant-Petitioner, Russell Adams,

v. Equipment Company, Inc., Northland League Company The Insurance Cincinnati Municipalities Mutual Insurance of Wisconsin Defendants-Respondents. Company, Court

Supreme February 2014. argument Oral No. 2012AP580. July —Decided 79WI 272.) (Also reported 850 N.W.2d there were For the plaintiff-appellant-petitioner, Greenwald, Rockford, and oral Thomas E. by briefs Thomas E. Greenwald. argument by Equip- Northland defendants-respondents, For the Company, Insurance and Cincinnati ment Company Woehl, Dustin T. James M. Ryan, by a brief there was Swietlik, S.C., Milwaukee, and Lewis & and Kasdorf M. Ryan. James argument oral ROGGENSACK, J. We PATIENCE DRAKE affirming of appeals1 decision of the court review a Co., 2012AP580, unpub Equip. No. Adams v. Northland 2013). (Wis. App. Mar. slip op. Ct. lished County compelled order of the Rock Circuit Court2 that plaintiff accept Russell Adams to a settlement offer Equipment Company, from defendant Northland Inc. employer's compensation that Adams' insurer, worker's League Municipalities The of Wisconsin Mutual Insur- (LWMMIC), Company accept. ance chose to ¶ 2. sued insurer, Adams Northland and its Cin- Company, pursuant cinnati Insurance to Wis. Stat. 102.29(1) (2011-12)3 § personal injuries for Adams sus- plowing employer, Village tained while snow for his of Fontana.4 $200,000 Northland offered to settle Ad- accepted ams' claim. LWMMIC Northland's offer and compel accept moved the circuit court to Adams to it as granted well. The circuit court LWMMIC'smotion. ¶ 3. Adams contends that the circuit court erred compensation because a worker's pel insurer cannot com- employee accept an settlement of a third § tort claim. Adams reasons thаt Wis. Stat. interpreted permit cannot be compel the circuit court to interpretation settlement because such an would violate his to a trial, which I, Article Section 5 of the Wisconsin Constitution secures. He also proce- contends that the circuit court's order violates process product dural due and is the of an erroneous among things, exercise of because, discretion other evidentiary hearing. circuit court did not conduct an may compel 4. We conclude that a circuit court employee settlement of the claim the 102.29(1). legislature created Wis. Stat. In such a employee compensa- claim, both the and the worker's 2 The presided. Honorable James Welker subsequent All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. defendant, LWMMIC was named as a but its interest was 102.29(1). plaintiff pursuant that of a to Wis. Stat. parties; third to sue tion insurer share insurer have and the worker's recovery prosecution equal claim; the in the of an voice apportioned is in the manner described from the claim 102.29(l)(b); empowered § circuit court is to and the any arising employee disputes between the resolve during prosecu- the insurer the worker's disputes involving including claim, their those tion of settlement. interpretation that our of 5. We also conclude 102.29(1) Adams' to a Stat. does not violate the trial the claim creates is not because recognized

counterpart the of action at law at of cause adoption We time of the of thе Wisconsin Constitution. authority that the circuit court's to further conclude compel settlement does not violate to judicial process procedural resolution of due because Lastly, statutory disputes part the claim. we con- appropriately court exercised its clude that the circuit taking by defining dispute, stock of the the discretion parties considering positions the matters relative impacted Accord- the fairness of the settlement. appeals. ingly, of the court of we affirm the decision

I. BACKGROUND injuries personal Adams 6. This case concerns employment during with the the course of his sustained February Village 2009, Adams was of Fontana. On driveway Village plowing the Hall when the blade the lip plow claims Adams of his struck the sidewalk. lip, plow the the the came into contact with that when up suddenly stopped him into the and threw truck "causing ceiling excessive truck, cab of the spine." compression applied The truck to his forces to be driveway, past the end of the crossed then continued the stop street, curb, and struck a where it came to a final plow operator and another discovered it. Adams was wearing not a seat belt at the time of the accident. plow equipped springs

¶ 7. The was with designed were to absorb some of the shock when the plow experienced a certain amount of resistance. The springs by allowing were to reduce the shock plow "trip." truck, bottom of to rotate toward the or correctly, springs In order to function needed to be tight enough plow enough trip snow, but loose plow when the hit fixed obstacles. Village

¶ 8. Before accident, Adams' had been experiencing problems plow with Adams used in that easily tripping pushing heavy it was too when snow.The Village brought plow repair. to Northland for explained

¶ 9. Northland that the two Henderson springs plow brand on the were worn out and need of replacement. Northland did not have the exact Hend- replacement springs plow, erson brand for the and could expected not obtain them before an snowstorm. There- Village replace fore, Northland and the decided to springs springs Henderson brand with Western brand replacement springs that Northland had on hand. The year prior worked without incident for the and a half Adams' accident.

¶ 10. As a result of the accident, Adams suffered permanent injury spine. brought personal to his He injury alleging claims Northland insurer, and its negligence repair plow liability in the of the replacement springs. and strict for the malfunction of the LWMMIC, paid compensa- $148,332 which had Adams in worker's expenses temporary tion benefits for medical and total permanent partial disability and as of the date of the compel, participated pursuant motion to in Adams' suit 102.29(1). to the claim created Stat. ¶ 11. Northland and Cincinnati Insurance moved summary judgment, arguing that for Adams could not negligence They prove or causation. asserted that the testimony deposition expert, of Adams' Robert Wozniak, that could showed Wozniak not a standard "establish^ plow's springs" for a safe tension level the snow and prove therefore, Adams could not that "this accident happened not would have at different tensions." summary judgment hearing, ¶ 12. At the motion pressed attorney, the circuit court Adams' Thomas asking, put [Northland] Greenwald, on this issue "So on [springs] ha[d] more tension. Now what's the going negligence?" evidence to be that that was responded "go- ¶ 13. Greenwald Wozniak was ing testify that that created an unreasonable risk of by adding spring, requiring harm that much that much tension, and that unreasonable risk of harm was that the plow trip required trip would not when and that that unreasonable risk of harm is what caused this event to testimony, occur." As to the basis for this explained Greenwald part opinions that Wozniak's were of memo prepared and "asked at his Greenwald deposition for Wozniak opinions, [Wozniak's] [Wozniak are these yes." said] explaining

¶ 14. After that Greenwald would not by "presenting prove be allowed to Adams' case at trial legal gobbledy gook asking] Wozniak] with some him it," to confirm the circuit court denied defendant's

summary judgment explained motion. The court its decision as follows: awfully strong

I spitting think Mr. Greenwald is into an here, may get wind and it be that even this case will case, know, I plaintiffs dismissed at the end of the don't I think that there at that minimum but do least engineer says that this is quantity opinion an by springs accident that was caused that were too an tight. going is] to be asked [Wozniak How a sure —I'm trial, 'Well, tight tight enough?' have

at how would been interesting [i]s. And I—it will be to see what his answer be proper But I think that this is not case should summary judgment, and for that reason the decided on denied. motion is days

¶ 15. Four after the circuit court denied summary judgment motion, LWMMIC re- Northland's attorney $200,000 ceived a settlement offer. LWMMIC's Greenwald, contacted who informed LWMMIC that accept Adams would not the offer. attempted negotiate

¶ 16. LWMMICthen to reso- proposed exchange lution with Adams. It relinquishing that in for litigation Adams, control of the Adams liability from for future release LWMMIC worker's payments. rejected After Adams unilaterally proposal, accepted LWMMIC's LWMMIC the settlement offer and moved the circuit court to compel accept Adams to it as well.

¶ 17. The circuit court received submissions from hearing parties both held on the motion. LWMMIC explained accept that it wished to the settlement offer citing trial, because of the risks of a defense verdict at "comparative negligence, fault, concerns about seatbelt damages." thought it LWMMICalso said that Adams' improved" summary judgment case had "not since the hearing expert Krenz, because Robert an for the witness plow "actually defense, tested the and found that it does just trip[,] m.p.h. very even at little with movement V% of the driver." (1) responded

¶ 18. Adams that: a court has no authority compel settlement; (2) if a court had such authority, evidentiary hearing to evaluate the merits of the case would be necessary (3) settlement; before and the settlement compelling offer in the case is present "grossly inadequate" and "not in the best interest" of Adams. 19. The circuit court granted LWMMIC's motion

¶ settlement. It concluded that it had the au compel to do so under Dalka v.American Mutual Family thority Cо., Insurance 686, 2011 WI 334 Wis. 2d App 799 923; that an evidentiary hearing N.W.2d was unneces and that the risk of a of no at trial sary; finding liability exceeded the of a possibility verdict exceeded the settlement offer. 20. Adams and the court of appealed appeals court,

affirmed. As with the circuit the court of appeals concluded that Dalka controlled the of authority issue settlement. As to Adams' compel argument about it evidentiary hearing, concluded that due did process not a "mini-trial" of Adams' claims require because when we affirmed an order compelling insurer v. Bergren Staples, settlement Wis. (1953), 57 N.W.2d 714 we did not a mini-trial. require Dalka, 2d 686, it concluded that Lastly, the circuit court appropriately exercised its discretion because it the nature and inquired strength into case, verdict, the risk liability jury assessed of no and came to a logical conclusion. We affirm the decision of the court of appeals.

II. DISCUSSION A. Standard of Review 21. This case us to requires interpret apply portions of Wis. Stat. 102.29. Statutory interpretation indepen questions application for our are of law analyses although of from the review, we benefit dent Novy, appeals court. State v. and circuit the court of ¶ 610. 289, 2d 827 N.W.2d 23, 21, 346 Wis. 2013 WI pursuant ¶ made to Wis. Stat. 22. Whether a claim 102.29(1) jury § includes the to a trial such compelling employee to settlement violates the employee's I, under Article Section 5 to a trial question of for is also a law of the Wisconsin Constitution independent Schweda, 100, State v. 2007 WI our review. ¶ 49; Vill. Food & 12, 353, 303 2d 736 N.W.2d Wis. Liquor ¶ Petroleum, Inc., 92, 7, 2002 Mart v. H & S WI 177. 478, 254 2d 647 N.W.2d Wis. procedural has denied 23. Whether a been yet question process for our another of law

due is independent Wood, ¶17, 15, 323 review.State v. WI finally, 321, 63. And we review a Wis. 2d 780 N.W.2d authority granted decision to exercise the circuit court's 102.29(1) § disputes to to it under Wis. Stat. resolve prosecution claim under an errone of Bergren, standard. See 263 Wis. ous exercise of discretion at 485. Principles Compensation

B. Worker's legislatively Compensation is a 24. "Worker's compromise designed bring employers enacted employees together mutually

in a beneficial scheme guaranteeing in the event of benefits work-related injury Rothering, 2d v. 174 Wis. and disease." Nelson (1993). major goal The 496 N.W.2d 87 "provid[e], compensation in the most worker's dignified, finan- form, certain efficient, most and most cial and medical benefits for the victims of work- injuries." connected Compensation 1 Lex K. Larson, Larson's Workers' (2012).

Law 1.03[2], at 1-5 By enacting compensation, leg worker's "the impose upon employers islature intended to an absolute liability, regardless fault; and in return for this bur grant employers immunity den, intended to from all tort liability injuries employees." on account of Guse v. A. Corp., O. Smith 403, 406-7, 51 N.W.2d 24 (1952). By entering employment relationship, into an employer part then, the make it of their ‍​‌‌​​​‌​‌​​‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌​​​​‌‌​​‌​‍relationship injury disputes to resolve work-related statutory within the worker's framework. statutory ¶ provides 26. While this scheme an employer immunity negligent with near in tort, third parties enjoy employee, do not the same benefit. An employer payer compensation and the of worker's all may party sue a third in tort under Wis. Stat. 102.29(1). 102.29(1). § § Nelson, 174 Wis. 2d at 300; proceeds

¶ 27. The distribution of from a Wis. Stat. § рarty "gives original 102.29 third claim effect to compromise underlying Compensation the Worker's Act by specifying what it determined to be a reasonable apportionment proceeds parties of between the in notwithstanding volved," what the common law would provided. Nelson, have 174 2d Wis. at 303. Stated other brought scope wise, third claims within the of § governed by statutory 102.29 are scheme of compensation, worker's not common See law. Mulder Corp., v. Acme-Cleveland 95 Wis. 2d 173, 177-78, 290 (1980). N.W.2d276

¶ compensation 28. We also note that worker's just rights alters more than employer the common law of an employee. and instance, For we have construed preventing compensation a third as statute the worker's party negli- seeking from contribution from tortfeasor employer though employer, substan- gent was "even party." 177. We tially Id. at than the third at fault more party who, permitted third for the this harsh result nothing gains employee, employer from unlike the compensation "worker's because statutes the worker's legislative all-pervasive constitute laws Id. at 180. scheme." 102.29(1) Interpretation Wis. Stat.

C. interpretation begin of Wis. Stat. ¶ our 29. We through language statute, with meaning. legislature expressed the statute's which the ¶ Badger Co., 52, 20, 309 Mut. Ins. 2008 WI v. Richards Group, Energy 581; Indus. 541, Wis. 2d 749 N.W.2d Wis. ¶ Wis., 89, 15, 342 2012 WI Serv. Comm'n Inc. v.Pub. meaning of the 240. "If the 576, 2d 819 N.W.2d inquiry." ordinarily stop plain, State ex we statute Cnty., 58, 2004 WI Dane Kalal v. Circuit Court rel. for (quoting Seider 633, 2d 681 N.W.2d 45, 271 Wis. 2d O'Connell, 43, 236 Wis. v. 2000 WI 659). N.W.2d statutory language give common, "its 30. We meaning, except

ordinary, accepted that technical phrases given specially-defined are their words or or meaning." special Id. Because or definitional technical meaning," interpret important "[c]ontext we statu- is language tory used; in in it is not "in the context which part Id., ¶ 46. We also of a whole." isolation but as prior statutory history own and consult our review part our statute as that examined the same decisions plain meaning analysis. Richards, See 541, Wis. 2d 22 ("statutory is history ¶ of a part plain meaning Soto, analysis"); State v. 2012 WI 343 Wis. 2d ("when 43, 817 N.W.2d 848 in engaging statutory inter pretation, we are assisted by prior decisions that have statutes"). examined the relevant 31. Wisconsin Stat. provides rel- evant part:

(a) The making of a compensation claim for against employer compensation or insurer for the injury or death employee of an shall not right affect the of the employee ... to make claim or maintain an action in against any tort party other for injury death, such or hereinafter referred to party; as 3rd nor shall the making by any of a claim person against such a 3rd party damages for ... affect the injured employee's or the dependents to recover com- pensation. An employer or compensation insurer that paid obligated has or is pay a lawful claim under this chapter shall have the same to make claim or maintain an action in any tort other for injury such or death. . ..

(b)... Each shall an equal have voice in pros- claim, ecution of the any disputes arising shall be passed upon by the court before whom the case is pending, and if no action pending, by then a court of record or the department. 32. Adams relies heavily on the first sentence of statute, it as reading providing an employee with an

unfettered right "to make claim or maintain an action in tort" against a third party. As to the language providing insurer with "the same and "an right" voice in equal the prosecution" thereof, Adams says that language is ineffective to negate "guarantee" the first sentence. The same true, holds language providing according for for the Adams, say says disputes. not judicial He it does resolution any disputes, resolving in can in court, that a circuit way employee's first sentence limit that the grants. party disagree The third

¶ Adams. with 33. We § from a 102.29 differs Stat. out Wis. claim set injury personal law because under common claim legislature created, which we the claim the nature of discuss below. claim

1. Shared Reading whole, conclude as a we the statute 34. language plain shows Stat. of Wis. that the against party In a shared claim. a third the claim Adams and between us, it is shared the case before 102.29(1) pro- compensation insurer, Section LWMMIC. compensation insurer vides that an equal claim" and "an voice to make have "the same ordinary, prosecution common, The of the claim." in the plainly meaning accepted demon- words of these the other. not favored over that one claimant is strates not of the statute does The first sentence the statute the claim that nature of alter the shared Statutory history plainly also shows how creates. developed legislature claim of Wis. Stat. the shared § 102.29. making example, a claim for 36. For employee's greatly compensation altered

worker's ability а third because file a tort claim made, it claim was a worker's when any assignment [employee's] "operate[d] cause anas employer. 110a, ch. Wis. Stat. in tort" to the of action (1911). legislature amended the 1913, the In 2394-25 provision gave statute somewhat and added a injured employee a choice about whether to compensation injuries worker's or seek relief for his party. from a pro- third The relevant statute in 1913 by making against party, vided that a claim a third employee any compensation waived claim for worker's (1913). employer. § from the 110a, Ch. 2394-252. interpret ¶ 37. We the first sentence of Wis. Stat. § establishing previous as that, unlike ver employee pursue sions of the law, an is able to a claim in party maintaining tort a third while a claim for compensation worker's However, benefits. the claim § created in 102.29 is a shared is, claim. That the employee right shares the to make such a claim with payer compensation generally the of worker's benefits, compensation employee the insurer. In claim, such a the compensation "equal and the insurer have an voice" in prosecution. interpretation the claim's Our harmonizes giving every the statute whole, as a effect word, to and statutory history underlying is consistent with the § Gilbert, 102.29. See State v. 72, 2012 WI 39, 342 (in 82, Wis. 2d 816 N.W.2d215 order to avoid an absurd interpret way result, "we must the statute ... in a provisions gives harmonizes the of the statute and word"). every effect to statutory 38. The directive that the to

bring prosecute party third tort claims is shared leads us to the conclusion that Wis. Stat. 102.29 type created a new of claim the nature of which is by Sharing controlled statute, the not common law. bring the necessarily to suit with another gener- alters the nature of the common law claim. See ally (Prosser, Schweda, 303 Wis. 2d 103 J., concurring part, dissenting part) (illustrating in in the part,

principle defined, claims often are at least them). may bring by who begin

¶ employee's decision to file a lawsuit. 39. We with the injuries to decision sue for work-related An 102.29(l)(a) fundamentally differ- Wis. Stat. under the it be absent the statute because ent than would give employee not have to would join making "opportunity in the of such insurer choices at The would be able make claim." timing filing beginning such as the lawsuit, lawsuit, file lawsuit, the venue which regard to defendants, without to name as whom compensation Ryan, Antony Principles See L. insurer. (2000) Selection, L. Rev. Forum W Va. privilege ("plaintiffs forum-selection axiomatic tradition"). 102.29(1)(a) § im- contrast, In common-law employee compen- obligation poses an on both the and give of insurer to the other notice their actions so sation participate. that both can Furthermore, of 40. the shared nature this party employee de claim is such that when an

third party compensation claim, a third clines assert personal damages can that are to the insurer sue for suffering, employee, pain those for such as without joining employee. Co. Threshermens Mut. Ins. v. (1998). Page, 451, 462, 217 Wis. 2d 577 N.W.2d335 proceeds 2. Division of proceeds party ¶ 41. The of a third claim do not belong injured employee. Rather, to the if the Wis. Stat. 102.29(l)(b)l.- § § succeeds, third claim proceeds aрportioned directs must be be- how persons bring entitled to the claim. This is a tween significant departure from the common because the law remedy provisions "supersedeQ employee's statute's [common law] to be 'made whole.'" Id. at 462. retaining Therefore, rather than the entire amount of any recovery employee for himself or herself, an must recovery according statutory share that to the formula. 102.29(l)(b)l.-3. § employee may An also be made to by damages bear, deduction from the awarded, some of compensation including insurer's costs collection, 102.29(l)(b)l. (l)(c). attorney § fees. Furthermore, repeatedly statutory we have held that the distribution proceeds scheme is not an embodiment of the com- principle subrogation. Bergren, mon law 263 Wis. at 482; Threshermens, 217 2d Rather, at 480. it is a part §by of the claim created 102.29. disputes

3. Judicial resolution of § requires 42. Wisconsin Stat. 102.29 also disputes bringing between those who are 102.29 claims be resolved the circuit However, court. Adams argues compel that a insurer cannot acceptance settlement, of a wherein he at makes least implied argument "dispute" that settlement is not a 102.29(1). briefly explain why under We we reach the opposite beginning again plain conclusion, with the language of the statute. providing

¶ 43. After that an and com- pensation "equal prosecu- insurer have an voice" in the 102.29(l)(b) § provides tion of claim, their Wis. Stat. "any disputes arising passed upon by that shall be pending." By using court before whom the case is "any," legislature language term chose thаt does not type disputes limit the of on which a circuit court must pass. Additionally, Bergren, our decision in in which we compel held that an can a accept disputed insurer to a settlement, seem would

547 differing opinions possibility about that foreclose "dispute" a within is not settlement whether 102.29(1), § meaning as Adams contends. Bergren, at 483. 263 Wis. although, circuit as the note that 44. We also 102.29(1) provide a does not Stat. stated, Wis.

court great guidance to be used on the criteria deal mandatory language settling disputes, the statute's empowered do plainly the circuit court is states that "any disputes arising statutory provision, shall The so. by passed upon whom the case is the court before be pending," broadly create an stated, that does not but is meaning. generally ambiguity See in the statute's Phillips ¶¶ Parmelee, 105, 22-23, 351 2013 WI v. (concluding 758, 840 N.W.2d 713 Wis. 2d broadly "any rising phrase, but not of," out is stated loss ambiguous). language plain Having that the concluded nature of the third establishes the Stat.

Wis. injury includes broad claim for a worker's disputes, authority we court to settle for the circuit authority the circuit court's to Adams' claim that turn require accept him to so broad as to cannot be to do so would violate his offer because settlement preserved trial, to a which constitutional Constitution. I, Section 5 of the Wisconsin Article Jury Trial D. given correctly al notes that when 46. Adams statutory interpretations, we select the will ternative constitutionally interpretation suffi that results Family DOR, 222 Mut. Ins. Co. v. cient statute. Am. (1998); Madison 2d 586 N.W.2d Sewerage DNR, 175, 185, 2d v. 63 Wis. Metro. Dist. (1974). argues 533 Adams then should N.W.2d we 102.29(1) § interpret way in a not Wis. Stat. would comрel allow a circuit court to employee's settlement because that would violate the right jury preserved by to a trial I, constitutional Article Section 5 of the Wisconsin Constitution.

¶ outset, At the note that we we are not presented awith choice of two reasonable constructions language Stat. because the ambiguous. Rather, statute is not we evaluate Adams' justification argument both as an alternative to our plain meaning interpretation argu- and because Adams' ments seem to include a contention that the circuit only court order not Article I, violates Section 5 of the 102.29(1). Constitution, Wisconsin but also I, 48. Article Section 5 of the Wisconsin Consti- provides tution as follows: inviolate, by jury

The of trial shall remain regard shall extend to all cases at law without to the controversy; jury may in amount but a trial be waived parties prescribed by in all cases in the manner Provided, however, legislature may, law. that the from verdict, time, by time provide statute that a valid cases, may specified civil be based on the votes of a jury, number of the not less than five-sixths thereof. provision ¶ 49. This does not accord all claims a Historically, jury applied protection trial. we have its only jury protection cases, to civil whereas Schweda, 1, criminal cases flows from Article Section 7. Cnty. McGrew, 353, 17; 2d 303 Wis. Dane v. WI 890; 13, 285 Wis. 2d 699 N.W.2d Bennett v. (1883). State, In 69, 74, cases, 57 Wis. N.W.912 civil interpreted we have Section 5 to mean that the (1) statutory preserved trial claim if for in that existed a cause of action codified statute (2) adopted; and Constitution was when Wisconsin's in at law rather than action was an action cause of equity. Food, ¶ Schweda, 353, 19; 2d Vill. 303 Wis. ¶ 478, 16. Wis. 2d Village

1. Food test right ¶ the constitutional 50. The test for whether statutory jury in to a claim is set out to a trial attaches Village Food: statutory right to have a party [A] has constitutional (1) jury the cause of action

claim tried to a when: existed, known, recog- by or created the statute was adoption at the time of the nized at common law (2) 1848; in and the action was Wisconsin Constitution regarded at as law 1848. ¶ Food, 478, 254 Wis. 2d 16.

Vill. "specific identity" ¶ 51. While there need not be statutory claim and a cause of action in between the asserting jury a constitutional to a 1848, the only slightly. prove trial must that the two claims differ way, ¶ McGrew, 519, 285 Wis. 2d 21. Put another "essentially [a] cause of action in 1848 must be coun- statutory terpart" to the claim in order for Section 5's jury protection apply. (quoting Food, trial Id. Vill. 28) (alteration McGrew). ¶ 254 Wis. 2d Village by example ¶ Food describes the de- 52. similarity statutory gree claim and a cause between in 1848 that one must demon- of action existed asserting a constitutional to a strate when Village trial. The defendant in violating Food was accused of provisions Act, certain ‍​‌‌​​​‌​‌​​‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌​​​​‌‌​​‌​‍of the Unfair Sales Wis. Food, ¶ 2d 3. Stat. 100.30. Vill. 254 Wis. We by identifying began purpose our discussion preventing "retailers, distributors, as 100.30 types goods (namely alcohol, wholesalers of certain fuel) products, selling tobacco and motor vehicle from artificially price merchandise at an in order their low patronage thereby competing attract cause harm to products." Id., businesses and tо consumers of those then examined the 18. We mechanism which the goal, markup statute achieved this a minimum formula. Id., also considered the remedies We available parties under the Unfair Sales Act and the bring who could provisions. Id., an action to enforce the Act's 20-21. ¶¶ examining statutory claim, 53. After we

proceeded to evaluate the sources of the defendant law support argument identified in of that a cause its counterpart action in Based existed 1848. on the de- scriptions in Sir William Blackstone's Commentaries on England, public the Laws we concluded that certain "forestalling regrating, offenses, market, trade engrossing" were "of the same 'nature'" as the case public ¶ Id., before us. 27. Because these trade offenses legal equitable in in 1848, were and not nature we right jury concluded that the defendant had a to a trial by I, secured Article Section 5 of the Consti- Wisconsin Id., ¶ tution. 33.

¶ in 54. Our later decisions McGrew and Schweda litigants vague similarities, cautioned such as an analogous roots," class of actions or shared "doctrinal enough Village McGrew, are not under Food. ¶ 20; Schweda, 2d In 519, 353, Wis. 2d 303 Wis. 34. compared speed McGrew, limit in Stat. we Wis. 346.57(4)(h) § to the cause of action for common law in 1848. concluded that the statute was not nuisance We counterpart because "the of common law nuisance categorized simply [were] as 'nuisances' class of actions analogized speeding to a violation." too broad to be Similarly Schweda, McGrew, in 519, 285 Wis. 2d 25. sprawling that nuisance law was too we concluded cоncept counterpart a to constitute a to certain envi- regulations. Schweda, 353, 303 Wis. 2d ronmental ¶¶ 32-34. Village application Food legal context, we evaluate 55. Within this under Stat.

whether the claim Adams asserts jury right him 102.29 accords a constitutional to a begin by noting although trial. We Adams asserts a right precludes requir- constitutional ing to a trial that claim, him to Village a he fails to discuss settle undertaking test. Rather than the sort Food analysis Village Food, our decisions McGrew and necessary, Schweda conclude is Adams states conclusory fashion: wrongs

The to seek for the commit- employees right going ted and its Northland early English initially back to the common law. It was Torts, "trespass referred to as on the case." The Law of Dobbs, Group, p. Dan B. West Section 26. It clearly recognized was a known and at common adoption law at the time of the of the Wisconsin Constitution in 1848.

¶ 56. Adams' assertion does not constitute a meaningful comparison of the claim created in Wis. trespass any Stat. to a on the to case or Instead, other cause of action that existed in 1848. stating implies his contention in that it this fashion is negligence "[a] dam- sufficient to note action for ages encompassed is an action at law and is

552 Square jury guaranty." Windsor Home- constitutional Rptr. Homes, 818, v. 62 Cal. 2d owners Ass'n Citation 1997).5 (Cal. App. Adopting contention, Adams' 820 Ct. by analysis, unaccompanied "render the would which nullity 'present Village test a because causes of Food this test will. . . have action of all sorts assessed under [only] generally compared in ... order to invoke to be by jury.'" protection a trial the constitutional to (quoting Food, ¶ Schweda, 353, 2d 40 Vill. 254 303 Wis. (Wilcox, concurring part, in dis- 478, J., 2d 46 Wis. senting part)). in regard assertion, In Adams' we note that law, actions that we

under the ancient common would categorize negligence as claims were sometimes brought trespass Brunn, on the case. Mueller v. 105 as (1982) (explaining 790 171, 180, Wis. 2d 313 N.W.2d "[t]respass the ancestor of the that present day on the case is problems negligence

action for where arise."). legal law, At common and factual cause bring injured party a claim a is entitled to injuries to the for sustained due tortfeasor Progressive negligence. Nichols v. N. tortfeasor's See ¶¶ Co., 17, 2d 746 20, 11-12, 2008 WI 308 Wis. Ins. (explaining the elements of common law N.W.2d 220 negligence common law rules for such and some of the claim). negligence belongs A claim to the common law injured party Sampson Laskin, v. 66 or his estate. See (1975) (which 318, 2d 224 594 arose out of N.W.2d causing injuries personal men, died, one of whom two claim). his estate to own the 5 California, states, provides and 46 other for like Wisconsin using trial in civil cases a state constitutional that the shall 'remain inviolate.'" language "to the effect Schweda, 89, 303 Wis. 2d State v. 2007 WI (Prosser, J., concurring dissenting part). part, N.W.2d 102.29(1) § by

¶ 58. The claim created Wis. Stat. is counterpart not the of a common law claim maintained compensate injured person injuries. Rather, an for his 102.29(1) § by comprehen- contrast, a claim furthers the regulations sive economic that worker's "[wjorker's put place. explained, has compensation As we have basically regulations by are lаws economic legislature, public policy, which as a matter of has competing Mulder, balanced societal interests." § prescribed Wis. 2d at 180. The remedies for a injured employee statutory claim wherein shares the part regulations. claim demonstrate of those economic compensation payer's right This includes worker's employer reimbursement, even when the at fault for was employee's injury. Id. at 178-79. examples ¶ 59. There are numerous of the legislature's comprehensive party scheme in this third statutory party First, claim. the third claim is shared payer compensation, with the of worker's Wis. Stat. 102.29(l)(a); person second, the claim accords the with "equal bringing whom the claim is shared an voice"in prosecution, parties id.; claim and in its third, the must give parties participate, notice to one another so both can proceeds appor- id.; fourth, received from the claim are according statutory tioned to a formula wherein the injured party has no to all recovered, § 102.29(l)(b); statutory apportionment fifth, of recov- damages may injured preclude party being ered from whole, Threshermens, made 462; 217 Wis. 2d at disputes during prosecution sixth, that arise parties bring claim between the entitled a third 102.29(l)(a); court, claim are resolved the circuit ("where Bergren, 263 Wis. at 483 two claimants cannot agree proper prosecution as to the claim, of a then the trial"). pass upon dispute, court can without a right employee's a third an to sue 60. Because 102.29(1) statutory § part of a under Wis. Stat. abrogates statutory claim, a com scheme that creates required provides a distribution remedies and mon law authority legislature to well within its scheme,6the was way employee's claim in such a that and limit the define compelled employee could be to settlement. (explaining Threshermens, 2d at 462 See 217 Wis. statutory "supersedes employee's scheme whole'"). 102.29(1) § otherwise, be 'made Stated employee's abrogates the common law claim statutory parties a claim that differs third and creates negligence significantly claim from a common law so counterpart statutory a at that the claim does not have Accordingly, refuse to interfere in 1848. we common law 102.29(1) principles by engrafting § common-law with legislature comprehensive made. See choices the on the Oil, Inc., 11, 16, 2d 390 Martinez v. Ashland 132 Wis. 1986) (Ct. (concluding App. that the statu N.W.2d part proceeds tory the distribution of was directive for changed statutory common scheme that of an overall law). Having have that Adams does not concluded I, trial under Article a constitutional Constitution for the Wis. Section 5 of Wisconsin Adams' due claim, we now turn to Stat. challenge. process necessary party when example, For is not a third compensation benefits makes payer of worker's injury pursuant employee's on the party tort claim based 102.29(1), compensa payer when the seeks

Wis. Stat. even Mut. pain suffering. Threshermens employee's tion for the 462, 480, 2d 577 N.W.2d 335 Page, v. 217 Wis. Ins. Co. (1998). E. Due Process argues ¶ 62. that the circuit Adams court's order procedural process rights violated his duе because he why accepted did not know LWMMIC Cincinnati's settlement offer and the court did not hold an eviden- tiary hearing present at which he could witnesses. reject

¶ 63. We Adams'first assertion out of hand. accompanying compel, In a letter its motion to of which copy, explained Greenwald received a LWMMIC "liability problems [this] case," with had which been thoroughly summary judgment vetted at the recent accept "fear[ed] motion, caused it to the offer. LWMMIC [would] that a trial verdict," result in a defense preferred recovery the certain the settlement offer presented. hearing, At the motion LWMMICreiterated accept that it wished to settlement because the sum- mary judgment hearing many "laid bare" deficiencies in reasonably Adams' case. Adams cannot contend that he why did not know LWMMIC wished to settle- type hearing ment, and turn we now to the of Adams required. believes is process

¶ 64. Procedural due under the Four- teenth Amendment to the United States Constitution I, and Article Section 1 of the Wisconsin Constitution protect against government deprive actions that liberty, property pro- life, individual of or without due procedural process cess of the law. "In due claims, deprivation by constitutionally pro- state action of a liberty, property' tected in 'life, interest or is not itself depri- unconstitutional; what is unconstitutional is the process vation of such an interest without due law." of 556 McCaughtry, 571, 579, 176 Wis. 2d 500 Casteel v. (1993) (quoting Burch, v. 494 Zinermon U.S. N.W.2d (1990)). 113, 125 analysis employ two-step a to determine 65. We procedural due there has been violation of

whether a[n] process. First, ask "whether there exists . .. we by State"; interfered interest which has been with procedures second, we examine "whether the attendant deprivation constitutionally upon sufficient." were Kentucky Dep't Thompson, (quoting Corrections v. Id. of (1989)). 490 U.S. is Adams' 66. The interest at stake this case statutory against Be- claim Northland and its insurer. 102.29(1), and not the constitu- cause it is Wis. Stat. gives to and defines tion or the common law that rise claim, Adams' his interest is coterminous with statutory Regents Colleges Bd. State v. claim. See (1972) (explaining property Roth, 408 U.S. are defined interests "are created and their dimensions by existing understandings from an or that stem rules law"). independent Adams' interest source such as state right, together prosecute LWMMIC, is the with subject judicial party, a third resolution claim agree. disputes on which the two cannot statute, Adams' interest is created 67. Since by providing a mecha- that statute limits the and complain resolving disputes, Adams cannot nism for process. due mechanism violates resolution disputes is a "built-in" feature Judicial resolution of procedure § creates, not a the claim Stat. depriving a common or constitutional for right. Adams of law legislature judicial as selected resolution

That (and limiting) balancing therefore the mechanism for party, proceed against employee's right a third an to assignment rather than a statute of limitations or an as e.g., See, done, other states have is immaterial. Md. (West 2014) (em- § Empl. Ann., Code Lab. & 9-902 ployer bring against has the exclusive to an action party a third for two months after the com- wоrker's pensation so); employee may award, after which the do (2013) (an employee Okla. Stat. tit. who elects compensation assigns any to take worker's benefits employer). claim a third Because subject Adams' to the interest was limitation he chal- lenges, deprived any constitutionally he has not been protected interest; therefore, we do not reach the sec- analysis. step Casteel, ond of our See 176Wis. 2d at 579. E Erroneous Exercise of Discretion argument ¶ 68. Adams' final is that the circuit court's order constituted an erroneous exercise of dis- (1) cretion. Adams faults the circuit court for: not (2) applying legal holding standard; not an eviden- tiary hearing presented at which he could have live testimony witness that would have demonstrated (3) strength failing case; of his to use a rational process to reach a reasonable conclusion. begin regarding

¶ 69. We with Adams' contention legal compelling employee standard for an gives only following settlement. The statute direc- tive pel: circuit courts faced with a motion to com- "[e]ach

The insurer equal prosecution shall have voice in the any disputes arising passed upon by claim, and shall be pending." the court before whom the case is Wis. Stat. 102.29(l)(b). recognized, As the circuit court this does guidance" great from the "a deal of not constitute legislature [a] deal these court should with as to "how matters." provide legislature's

¶ not to a The decision 70. precise the not be held standard should more by arguing the circuit court did Yet circuit court. legаl apply precise standard, this is what Adams not does. compel that a court cannot 71. Adams contends accept unless the settlement to settlement employee. Adams in the best interests of

offer is appears import in this standard from settlements to approval. require volving See court minors that also reject such a standard because 807.10. We Wis. Stat. objects special children, "are the unlike who "entitled to most courts" and are solicitude position occupy jealous employees under no such care," App McPherson, 298, 11, 2002 WI Jensen v. the law. (quoting Brandt v. 655 N.W.2d 487 258 Wis. 2d (Ct. Brandt, 788-89, 468 N.W.2d 769 161 Wis. 2d omitted)). 1991) (further App. citations compen- Employees as a have the same bring under Wis. Stat. a claim sation insurer prosecution equal voice and an the standard a conclude that Therefore, we thereof. deciding employ whether when circuit court should compel party is one that evalu- settlement reasonably fair to both the settlement ates whether standard, parties. interest rather than a best Fairness, language keeping statute, with the is more bring person entitled to not favor either which does federal law for under It also echoes standard claim. approving requires settlement, which a class action adequate." reasonable, and "fair, offer be the settlement 23(e)(2). persua- Fed. R. Civ. E The federal standard is because sive class actions raise concerns similar to compelling litigant Adams' about to settlement. generally Corp., See Ortiz v. Fibreboard U.S. (1999) ("the mandatory 845-46 certification of a class mоney damages followed settlement of its action for obviously implicates the Seventh Amendment trial members"). rights of absent class We turn now to the process determining of whether settlement offer is fair. product 73. Settlement are the decisions of vari- quantify compare.

ables that are difficult to These litigation costs, include costs, settlement in stakes case, and likelihood of success at trial. Richard A. Approach Legal Posner, An Economic to Procedure and Legal Administration, Judicial J. Stud. 417-29 (1973). aptly professional This case demonstrates that vary greatly. estimations of these variables can The decision of a circuit court who has examined whether a reasonably parties settlement offer is fair to both there- fore deserves wide latitude. briefing thorough 74. As a result of the

questioning summary judgment on defendants' motion, disputed present issues in the case were well defined for the circuit court before LWMMIC'smotion compel appeared to going settlement. It that Adams was beyond

to have to submit evidence what he opposition summary judgment submitted in to the prove motion in order to his case. Evidence that could squarely springs, establish a safe level of tension for the expert testimony, such as an industrial standard or point seemed to be absent. At least at the summary judgment appeared rely motion, Adams to on conclusory legal statements from a memo Greenwald prepared prove negligence, for Wozniak to rather than grant did not defendants' the court on While evidence. agreе summary judgment motion, we with LWMMIC many summary exposed judgment motion that the case. deficiencies Adams' also had the benefit The circuit court relating parties materials the submitted additional compel that, at These showed settlement. the motion problems opinion LWMMIC, Adams' with least pro- summary judgment had increased since case testing example, ceeding. had shown For additional driving plow did at the time of accident Adams was the trip, neurosurgeon speeds. Defendants' was at low even testify going that Adams would not have sustained wearing injuries belt, and a seat had he been his statutory arguing the limit on a that defendants were damages wearing did not not a seat belt of for reduction apply. response motion was Adams' to LWMMIC's 76. obligated to conduct the circuit court was hearing "present,

evidentiary Adams could at which testimony through documentary wit- and evidence prove [and] that intended to nesses, that which he prove, this he could in order demonstrate which proposed interests be- not his best settlement was stronger [the than circuit case was much what cause his court] opined." only suggestion not Adams' of a mini-trial is 77. significantly the value

unworkable, but it lessens accruing stopping proposed costs of the settlement, i.e., [by compromise very purpose litigation. the "The delay expense settlement] such a is to the avoid (5th Anderson, Cir. 667 F.2d Parker v. trial." (5th 1982) (quoting Young Cir. Katz, 447 F.2d v. 1971)). enough presented not with If a circuit court is

information about the case to conclude that it would be compel party fair to settlement, the solution deny pre-try motiоn, is to not to the case. See id. 433) ("In (quoting Young, determining 447 F.2d at adequacy proposed and reasonableness of the settle- case'"). try ment, . . . 'the court does not agree ¶ 78. We also with LWMMIC that to the 'smoking gun' extent ‍​‌‌​​​‌​‌​​‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌​​​​‌‌​​‌​‍Adams "had some witness or testimony defending that he decided not to use in summary judgment argument motion, such an runs contrary contemporary pretrial proce- to the nature of prevent dure, the aim of which is to trial ambush and surprises." minimize fleshing liability disputes, In addition to out parties prepare circuit court ordered the a break- any recovery

down of the distribution of under Wis. Stat. 102.29(1). § statutory Under the scheme, Adams would any recovery remaining receive one-third of after deduc- tion of reasonable collection, costs of which could include attorney fees for both Adams' and LWMMIC'scoun- 102.29(l)(b)l. § attorney sel, as well as his own fees. (l)(c). up LWMMICwould then be reimbursed to the already paid compensation, $148,332 it had plus "may obligated it amounts be to make in the future." 102.29(l)(b)2. Any remainder, sometimes called a 102.29(l)(b)3. go "cushion,"would to Adams. predicted 80. With the recovery distribution of before him, the circuit court was able to further evalu- ate the willing settlement. That LWMMICwas to settle roughly for already paid one-third of what it had in compensation, leaving it unreimbursed for two-thirds already paid of the amount it had and for all future payments, may sincerity have demonstrated the of LWMMIC's concerns about Adams' case. That LWM- MIC past would be entitled to reimbursement for and payments, ac- Greenwald which future given knowledged the nature be substantial would injuries, inform the cirсuit also could of Adams' extent If Adams' offer. the settlement of assessment court's expenses he that so substantial were medical future any unlikely inter- cushion, Adams' receive would be primarily of in one-third as characterized est could be recovery of costs. deduction after the dispute, Having taken stock the defined positions, that parties' matters considered the plain- to all impact offer of the settlement the fairness compel, granted motion to circuit court tiffs, the explaining follows: decision as its submitted the evidence upon based

I believe summary motion for opposition to the of and in support liability in this finding of no the risk of a judgment that something recovering possibility exceeds case motion is reason the $200,000, and for that beyond granted. "[t]he appeals circuit agree that the court of with

We interpretation logical reflected a decision court's surrounding and consider- offer the settlement facts bearing appropriate the deci- on factors ation of While the discretion. exercise of not an erroneous sion," say specifically it evaluated not court did circuit reasonably it was whether to determine settlement parties, the court satisfied are both we fair to thoroughly on that stan- matters that bear considered appeals Accordingly, the court of decision of dard. affirmed.

III. CONCLUSION compel may court that a circuit conclude 82. We claim the settlement an legislature 102.29(1). In such Stat. created Wis. employee compensa- claim, both the аnd the worker's right parties; tion insurer share the to sue third employee compensation and the worker's insurer have equal prosecution recovery an voice in the of the claim; apportioned from the claim is in the manner described § 102.29(l)(b); empowered and the circuit court is to any disputes arising employee resolve between the during prosecu- the worker's insurer including disputes tion involving claim, of their those settlement. interpretation 83. We also conclude that our 102.29(1) §

Wis. Stat. does not violate Adams' to a trial because the claim creates is not counterpart recognized of a cause of action at law at adoption the time of the of the Wisconsin Constitution. authority Wefurther conclude that the circuit court's compel settlement does not procedural process judicial violate due because resolu- disputes part statutory Lastly, tion of of the claim. we appropriately conclude that the circuit court exercised by defining dispute, taking its discretion stock of positions parties considering relative of the impacted matters that the fairness of the settlement. Accordingly, we affirm the decision of the court of appeals.

By appeals Court.—The decision of the court of is affirmed.

¶ 84. (dissenting). ANN WALSH BRADLEY,J. The lynchpin majority's analysis unsupport- lies its able assertion that the common law of the em- ployee bring negligent a tort action third abrogated by was the enactment of Wis. Stat. Majority op., ¶ 102.29. 27. Such an assertion unfor- history, tunately almost rewrites sub silenciо overrules ignores century precedent, the a of well-settled and words of the statute. history," say

¶ I because an examina- 85. "rewrites history that it is law tion of the reveals the common right employee bring against the a tort action of an to abrogated by employer the 1911 that was alone right Compensation Act—not the common law Worker's bring injured employee to a law tort of an common against negligent party. a third action pointedly ¶ 1927, an As this stated 86. court history statutory legislative of the and examination of compensation "leave[s] doubt that the worker's law no right legislature preserve to main- intended to the the any person, against than the tain an action in tort other causing injury employer, responsible for the acts who Pump Cermak v. Milwaukee Air Power a workman." (1927). Co., 44, 211 N.W.354 48, 192 Wis. say with- I overrules" because 87. "sub silencio majority acknowledging existence, its

out even century precedent apparently overrules almost a of our clearly provided repeatedly that the com- that has against right a tort to maintain action mon law negligent unaffected the enactment third was Stat. 102.29. [the law In court stated "the 88. this way any Compensation attempt Act] not does Worker's person abridge one remedies which against person may a tort which at law a third for have against person v. him." Smale such third commits Mfg. Wrought Co., 331, 334, 151 N.W. 160 Wis. Washer (1915) (emphasis supplied); v. Severin see also (1955) Luchinske, 383, 73 2d 477 271 Wis. N.W. ("That remedy [a party action] third existed at common enlarged impaired by law was neither nor enact- 102.29.").1 ment of sec. Finally, history century pre- if the and a enough, language

cedent were not of the statute expressly answers whether the enactment of the Compensation abrogated Worker's Act of the injured employee bring a common law cause of action negligent party. in tort third It did not. expressly provides ¶ 90. The statute bringing of a worker's claim "shall not employee, employee's personal affect the representative, person or other entitled to make claim or against any party maintain an action tort other for 102.29(1). injury such or death ...." Wis. Stat. majority's ¶ precarious analysis, 91. Under the it injured employee's determines that because the com- right bring against negligent mon law a tort action a party abrogated by third pensation has been the Worker's Com- right jury

Act, there is no to a trial. Accord- ingly, may compel it concludes that a court meaningful guidance to settle a claim, but offers no on process merely the standard or to be used. Instead, it cautions circuit courts to be "fair."A standard of "fair- provides ness" no standard at all. Contrary majority, 92. to the I conclude that history

based on the of the worker's law, longstanding precedent, express language and the employee's statute, the common law cause of action against party abrogated by a third tortfeasor was not Compensation employee's Worker's Act. Because an common law cause of action a third preexisted tortfeasor the Wisconsin Constitution and 1 For additional cases see the discussion below. day, re- the Wisconsin Constitution to this continues jury apply right a claim. quires trial to such to a that the compel Accordingly, the court cannot I conclude that respectfully dissent. here, and I settlement

I analysis majority's Adams of whether The 93. misguided jury right from a trial has beginning. there is a the issue as whether It introduces statutory right frames claim and then trial for a to a analysis created Wis. Stat. the claim as whether its counterpart action at law of a cause of is the adoption recognized of the at the time that was Majority op., ¶¶ Constitution. Wisconsin supplied). (emphasis the issue. The However, this is not litigant right a third had a to sue issue is whether party for a work-related at common law tortfeasor injury. Consti the Wisconsin I, Article section 5 of by jury. provides: protects It to a trial

tution by jury inviolate, and remain of trial shall "The regard at law without extend to all cases shall §5. controversy." I, "This Art. Wis. Const. amount non-statutory clearly causes indicates section guaranteed jury trial was law, action at where passage constitution, would of state before the jury right guaranteed trial to a a continue to have passage constitution." of the after the attached even Inc., Liquor Petroleum, 2002 Mart v.H & S & Vill. Food (emphasis 177 ¶ 478, 647 N.W.2d 10, 254 Wis. 2d WI 92, litigant original). based on if a files suit Thus, jury right trial to a action, and the law cause of common passage preceded action for that cause of right litigant has a constitutional constitution, the state to a trial.

567 ¶ 95. The common law of an individual to injury seek redress for an caused another has existed for centuries. far 1768, As back as Blackstone discussed personal "whereby actions a man claims satisfaction in damages injury person prop for some done to his or erty." Sir Blackstone, William 3 Commentaries on the (1768).2 England Laws 111 Blackstone referred to "trespass upon such actions as the case," and noted that by jury. such cases were assessed 122, Id. at 273-74. majority acknowledges, "trespass As the on the case" is present day negligence. the ancestor of the Majority op., action for (quoting ¶ 56 Brunn, Mueller v. (1982)). 2d 171, 180, 313 N.W.2d790 negligence, law, Actions at common such as easily abrogated by long are not statute. It has been "[statutes established that changing are not to be construed as purpose the common law unless the to effect change clearly expressed such therein. To have such language [of statute] effect 'the clear, must be unambiguous peremptory.'" Maxey Redevelop v. Authority Racine, ment 94 Wis. 2d 375, 399, 288 (1980) (quoting Bridge N.W.2d 794 Wisconsin & Iron Comm., Co. v. Industrial 467, 474, 233 Wis. 290 N.W. (1940)). 97. Because the common law of an em- ployee to seek redress from a third tortfeasor is a right preceding the Wisconsin Constitution, it cannot abrogated unambiguous, peremptory be absent clear, statutory language. nothing below, As discussed there is history Compensation in the of the Worker's Act, this interpretation plain language court's it, or the Act's 2 When ascertaining whether a cause of action existed in 1848, we often resort to Sir William Blackstone's Commentaries (1778). on England Labs., the Laws of State v. Abbott 2012 WI 34, 341 Wis. 2d 816 N.W.2d 145. perempt to indicate that it was intended to the common party- law to maintain an action a third tortfeasor. History

A. played signifiсant ¶ 98. has Wisconsin role in the history compensation country. of worker's in this law On May 3, 1911, Wisconsin became the first state in the pass constitutionally broad, nation to valid worker's Borgnis Co., law. v.Falk 147Wis. (1911);Joseph Ranney, Trusting Nothing 133 N.W. A. History Legal System A

Providence: Wisconsin's (1999). response, Employers In Mutual Insurance Com pany of Wausau was formed and established in a one- cigar room officeabove a store in downtown Wausau. On September day 2, 1911, one after the law became effec constitutionally it tive, issued the nation's first valid compensation policy. worker's Soon thereafter worker's compensation legislation became effective nine other states.3

¶ 99. The Wisconsin Industrial Commission was passage created also as a result of the of the worker's compensation legislation. chair Its first was Charles subsequently justice Crownhart who served as a on the Supreme knowledge Wisconsin Court. No doubt his experience early illumined some of worker's compensation decisions of this court —decisions that being majority's are sub silencio overruled holding today. 3 Nevada, Jersey, California, Kansas, Washington, New New Ohio, Illinois, Krohm,

Hampshire, Gregory and Massachusetts. Compensation: Workers' Wisconsin the Nation's First Pioneers Compensation Constitutional Worker's Law available 2011), (July at www.wipps.org/media/docs/2010_Krohm_History_WC-July 2011.doc. right employees to

¶ had the sue Prior to 1911 100. employers common law but often lost because their at Asher, "The 1911 Wiscon- defenses. Robert common law Study Compensation A in Conser- Law: sin Workmen's History, Magazine Reform," Labor Wisconsin vative (1973). rеcovery against There no an 57 at 125 was Vol. employee employer as- if determined that the it was any way, employee negligent in was risk, sumed injury negligence of a or the occurred because employee employee. However, if the was success- fellow employee the amount the could ful, there was no limit on Id.; Ozanne, The Labor Movement recover. Robert W (1984). History A 125-26 Wisconsin: Compensation Act was 101. The Worker's employer's passed compromise as a between employee's Employers their common law interests. lost trading system a no fault under defenses, them for obliged employees to a limited and which were Corp., Mulder v.Acme-Cleveland 95 scheduled amount. (1980). 173, 180, 2d 290 N.W.2d abrogation of common law claims 102. The Compensation against employers in Act the Worker's against third did not extend to common law claims party 1911, it first enacted in tortfeasors. When was Compensation provided making Act Worker's compensation claim for assignment under the law would "act as an any cause of action in tort which the personal representative may employee or his have against any party." §1, 50, ch. of 1911. other Laws Compensa- An amendment to the Worker's provided making Act in 1913 that the of a claim tion employee against party operate an a third "shall as a any compensation." §1, claim for ch. waiver of Although Laws of 1913. assign the law allowed employee's tort claim and elect common law pursue party either a tort claim a third or a compensation, clаim for worker's it did not eliminate party the common law to sue a third tortfeasor. though ¶ 104. Even the common law to sue a party employees remained, third most chose the worker's employers claim and few exercised their assignment rights. Expanding Millender, Robert L. Em- ployees' Party Actions, Remedies and Third 17 Clev.St. L. (1968). Rev. This left the third tortfeasor Although justification with "a windfall."Id. there was liability employer remove tort from an because the employer regardless was liable of fault under Compensation party Worker's Act, the third tortfeasor gave up nothing up equivalent and ended with the immunity employers' due to reluctance to sue. Id. Accordingly, Compen- 105. in 1931 the Worker's requirement sation Act was amended to eliminate the employee that an select between a common law tort against party claim compensation a third tortfeasor and a worker's Drafting

claim. 132, file for ch. Laws of ("The Legislative 1931, Bureau, Reference Madison, Wis. party liability changed injured third is to be so that an may compensation in workman all cases claim without surrendering right party."). his to sue a third The new language provided: making compensation

The of a claim for against an employer compensation or injury insurer for the or employe right death of an shall not the affect of the employe personal representative or his to make a claim against any party or maintain an action in tort other for death, injury such or employer but the or his insurer shall be entitled to notice opportunity reasonable and an join to in such action. Despite slight

§2, 132, ch. Laws 1931. to amendments day protect law since it to continues this to right employee's make a claim law common 102.29(1). party against Stat. tortfeasor. Wis. a third Century B. of Precedent history, its courts have with 106. Consistent Compensation recognized repeatedly that Worker's impair employee's common law not an Act does against a third tortfeasor. a tort action maintain ago, Supreme years the Wisconsin Almost one hundred succinctly expressed should be the law which Court attempt today: majority guiding "The law does not any way abridge which an the remedies may against person person a third for have at law of one against person him." commits such third a tort which Smale, 160 at 334. Cermak, 192 Wis. at Likewise, in early interpreting statute, an version

court, clearly "[t]he act evi- workmen's stated payment compen- legislative that the intent dences by employer shall not relieve the one whose sation injury liability therefor. act caused this from tortious Stats., which 102.29, shown sec. This intent carefully preserves to maintain an action person acts caused the such other whose tort injury."4 although explained receiv- 108. The court "operates ing compensation as an benefits worker's assign- any assignment tort," of action in of cause repaying merely purpose to the ment "is for the 4 agreed interpreta this The dissent in Cermak also with tion, stating my no doubt in mind that the "[t]here exists injured preserves act to the workman workmen's against a may exist at common law . . . such cause of action as Co., Pump 192 person." Cermak v. Milwaukee Air Power third (1927) 44, 51, (Rosenberry, dissenting). J. 211 354 Wis. N.W. 572 employer compensation paid the amount of the the injured employee." Accordingly, Id. at 47-48. it con- provisions Compensa- cluded that the of the Worker's legislature tion Act "leave no doubt that the intended to preserve against to maintain an ‍​‌‌​​​‌​‌​​‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌​​​​‌‌​​‌​‍action in tort any person, employer, responsible other than the who is causing injury for the acts to a workman." Id. at 48. ¶ 109. After the 1931 amendment to the Worker's Compensation recognize Act, courts continued to that it impair employee's did not common law maintain a tort action a third tortfeasor: 102.29, Stats., The fact that appears sec. in chapter entitled Compensation" "Workmen's change does not brought character of the action against a third party, said, which as we have is one at law founded in nothing tort. There is in Compensation the Workmen's legislative Law which discloses a purpose creating remedy injury new for an to an caused negligent party. remedy act of a third That existed at common enlarged law and was neither impaired by nor enactment of sec. 102.29. Employers

Severin, 383; 271 Wis. at see also Mut. Liability Bruin, Ins. Co. v. De 271 412, 415, Wis. 73 (1955) ("The N.W.2d 479 cause of action one at recognized law; common the fact that it is in a section of Compensation change the Workmen's Law does not [the liability tortfeasor's] upon fact that is based his acts."). wrongful expressed 110. The court similar in sentiments McGonigle Gryphan, v. 201 269, 272, N.W. (1930) ("[I]t is clear from a consideration of the whole rights act that it did not affect of action which existed any except under the common law cases those parties which the involved sustained toward each other relationship employer employee."). interpreting not alone in its 111. Wisconsin is compensation preserving the common law as worker's right employee party a tortfeasor. of an to sue third law determined that their states likewise Other have abrogate compensation laws do not com worker's against a maintain an action third mon law e.g., party See, Runcorn v. Shearer Lumber tortfeasor. (Idaho 1984) ("the Prods., 324, 690 P.2d 328 workmen's injured does not law disturb liability 'legal employee's right third to sue a for Corp., damages'"); County Diego pay San v. Sanfax 1977) (Cal. ("The 363, workers com 568 P.2d 367-68 employer employee pensation governing statutes against parties not third do define the substan actions employee whether an or an tive law which determines employer Instead, will fact recover. the substantive usually law."); governs general ... is tort law which Wood, Paul Fire & Marine Ins. Co. v. 416 S.W.2d St. 1967) (Ark. ("[The compensation law] worker's recognizes employee's common law tort action against persons."); Co. third Keener Oil & Gas v. (Okla. 1936) ("There Bushong, 56 P.2d is nothing Compensation] [Worker's in the whatever act may purpose under which it be claimed there was a or attempt modify, limit, or cancel the common-law liability injury party for his of a third tortious workman."). Language

C. of the Statute plain precedent ¶ 112. This consistent with language expressly provides It that the statute. compensation against making an em- claim for ployer shall not affect the of an to make any or maintain action in other a claim tort 102.29(l)(a). party. Wis. Stat.

¶ 113. The statute states: (a) making The compensation a claim against of for employer an or insurer for the in-

jury or death an employee shall not the affect right employee, the the employee's personal representative, person or other bring entitled to action to make claim or maintain an action in tort against any party other for such injury death, or hereinafter party. referred to as a 3rd . ..

(b) ... Each equal shall have an prosecu- voice claim,

tion any of the and disputes arising shall be passed upon by the court before whom the case is pending.... 102.29(1) (emphasis supplied).

Wis. Stat. ¶ 114. Wisconsin Stat. should not be abrogation jury read as an of the common law to a trial. As above, discussed statutes are not to be read as derogating legislative pur the common law unless the pose clearly expressed language to do so is in the of the Maxey, "legislative statute. 94 Wis. 2d at 399. Such change expressed intent to the common law must be 'beyond any Badger reasonable doubt.'" Kranzush v. Co., State Mut. Cas. 56, 74, 103 Wis. 2d 307 N.W.2d256 (1981) (citing Moths, Grube v. 424, 56 2d 437, (1972); N.W.2d 261 Burke v. Milwaukee & Suburban Transport Corp., 682, 690, Wis. 2d 159 N.W.2d 700 (1968)). accomplish change Thus, to a in the common language [of statute] law, "the clear, must be unam biguous, peremptory." Maxey, 94 Wis. 2d at 399. Although juxtaposition phrase "any disputes arising passed upon by shall be court," (l)(b) emphasized in subsection with the above lan- (l)(a) guage may give in subsection rise to some uncer- tainty meaning, certainly as to its it most "clear, is not limiting long

unambiguous, peremptory," in injuries standing right employee jury a fоr trial tortfeasor. Wisconsin Stat. caused § third 102.29(l)(b) upon ability pass may give court the during prosecution disputes of a that arise other beyond it However, a reasonable doubt case. does not— —permit compel an to settle a claim a court to thereby forcing party tortfeasor, surren a third employee's to a To the extent der of the trial. Family App Co., Mut. 2011 WI that Dalka v. Am. Ins. suggested 2d other 923, 334 Wis. 799 N.W.2d in wise, I conclude that it error. was ¶ $8,500 an offer 116. Dalka involved settlement plaintiff there were consolidated cases to the where parties, multiple disputes accidents, and different with origin injury. 12-paragraph In its over the of the appeals a decision, the court determined that court party employee an to its third could force settle analysis compensation claims. It its on worker's based Bergren Staples, 477, 483-84, v. 263 57 N.W.2d714 Wis. (1953). Dalka, 2dWis. 10. Bergren in the However, 117. was decided con- trying employer an an

text of who was to force Bergren employees, employ- noted, As unlike to settle. right employee's not have an ers do a common law to negligence against party. claim for third at appreciate Dalka 482. The court failed this distinc- Consequently, thorough analy- it did not tion. conduct history, of the issue and inconsistent sis with case express language law, discussed statute above. history pre- longstanding In sum, juris- together persuasive

cedent, from other with cases language as well dictions, as the the Worker's Com- pensation employee's Act lead to the conclusion that an against party common law cаuse of action a third abrogated by Compen- tortfeasor was not the Worker's employee's sation Act. an Because common law cause of party preexisted action a third tortfeasor day, Wisconsin Constitution and continues to this requires jury Wisconsin Constitution that the to a apply contrary trial to such a claim. Thus, to the majority, I conclude that there is a to a trial brought by for a common law cause of action employee against a third tortfeasor.

II majority compounds problematic ¶ 119. The its analysis by failing give any meaningful guidance on procedures applied what standards or should be implementing its erroneous conclusion. League

¶ 120. Here, after the Mu- Wisconsin nicipalities Company Mutual Insurance moved to com- pel requested opportunity settlement, Adams present support opposition evidence in of his to the specifically motion. He identified witnesses he would present support argument of his that the case had more value than the settlement offer. The circuit court request denied this and made its determination to compel previously settlement based on evidence en- support summary judgment tered in of a motion. ruling, ¶ 121. Prior to its the circuit court made a request guidance apply clear for on what standard to to grant compel determine whether to a motion to a settlement. It noted the worker's statute any procedure did not indicate for it to follow in deciding disputes parties: between all,

First of I say legislature want that the hasn't given great a guidance deal of respect with to how the legislature The these matters. should deal with

court two dispute there a between that where has directed conducted case should be on how the parties the accepted, should be offers of settlement whether upon the duty to sort that out imposes statute - nothing that's been no there's But there's court. goes about that. how the court determined about why guidance good no is set however, reason, a There is procedures to or on what standards forth in the statute compel considering em- employ a motion to when ployee a motion above, such As discussed to settle. deprive a would which century history, a to the trial precedent, be an anathema would express language the statute. and the a similar ab- The circuit court also noted 122. guidance from the courts: sence of this, only a which is only case that deals with And unfortunately a case where the ago, it was few months $8,700 only and where dispute was about amount - it in a rather apparently trial court dealt with judge deal of fashion, give great doesn't cavalier guidance.5 legis- agree that the I the circuit court with guidance little on how

lation and the caselaw offer merely states The statute make these determinations. arising passed upon "any disputes shall be pending." Stat. case is court before whom the 102.29(1). permitting court to case Likewise, the sole only compel had that the circuit court settlement noted employee's best that settlement was determined Dalka, It did not elaborate on interest. 334 Wis. 2d 686. referring was was The to which the circuit court case Co., Family Dalka v.Am. Mut. Ins. App 334 Wis. 2d 2011 WI 686, 799 N.W.2d 923. apply making a circuit court

what standard should Id., that decision and what evidence it should consider. ¶ 3. by majority

¶ 124. The standard set forth to- day guidance. provides opines even less It with scant explanation that "fairness" is a better standard than Majority op., Although majority ¶ 72. "best interest." employed by observes the three standards the federal (fairness, approving court when class action settlements adequacy), just reasonableness, and it chooses one with- rhyme apparent majority out or reason. Id. The man- employ dates that the standard a circuit court should deciding compel when whether to settlement is one that evaluates whether the settlement provides is "fair."Id. Such a solo standard no standard at all. majority guid- Likewise, 125. offers little process

ance on what a circuit court is to use when making grant the determination of whether to a motion compel stating to procedure settlement. Rather than what the majority proce- be,

should focuses on the suggested by stating Adams, dure that a "mini-trial" is Id., ¶ "unworkable." majority acknowledge

¶ 126. The fails to that in adopted circumstances, similar this a mini- court has In trial to assess the value of a settlement. Rimes v. Co., State Farm Mut. Automobile Ins. 106 Wis. 2d (1982), 316 N.W.2d 348 the court considered what procedure should determine be used to whether a plaintiff settlement between a and a tortfeasor made plaintiff subrogated whole such that a insurer could recovery. share in It a mini-trial concluded that approрriate. conducted the circuit court Id. at was hearings then, 276-77. Since Rimes have become the determining plaintiff norm for whether a has been by Frazin, v. 176 a settlement. Schulte made whole (1993). 305 622, 629, 2d 500 N.W.2d by majority the show The two cases cited 127. by evidentiary hearings district are also used federal determining approve class action courts in whether 23(e).6 Young Fed. Rule Civ.Pro. See settlements under 1971) (5th (noting Katz, 447 F.2d 434-35 Cir. v. testimony presented plaintiffs and that the witness by objectors nothing presented raised the evidence the it); Anderson, Parker v. of substance to contradict (5th 1982) (noting objectors' the 1204, 1210 Cir. F.2d any evidence at the settlement failure to introduce hearing). majority explain why not Wisconsin The does manage procedure are unable to the same circuit courts the federal courts. as well as Although procedure the contours of the the 128. majority unclear, forth for the circuit courts are sets guidelines inadequacy their loose are illustrated its majority application Here, in this case. determines compel permissible court to that it was for the circuit solely already the evidence before it. settlement based on being terminated without him able to Adams' claim was opposition compel present to the motion to evidence procedure question Such a calls into whether settlement. adequate determining the court had an basis for that the process fair and raises due concerns. settlement was 23(e) provides: Federal Rule Civ. Pro. claims, issues, may settled, The a certified class be or defenses of dismissed, voluntarily compromised only ap- or with the court's settlement, following proposed proval. procedures apply The to a dismissal, voluntary compromise: or (2) members, may proposal If the bind class the court would fair, approve only hearing finding that it it after a and on is reasonable, adequate. majority obligated provide ¶ 129. The is litigants some direction on circuit court with how compel determination circuit court is to make a Its standard of "fairness" is no standard at settlement. any all. Absent indication of what evidence court get to consider and how that evidence is to before the majority opinion responsibility. shirks its court,

Ill majority's approach to the sum, In history, right jury misguided to a trial is as it overlooks ignores cases, decades of and sub silencio overrules by assuming employee's of the statute an words right pursue against party a cause of action a third 102.29(1), and not tortfeasor comes from Wis. Stat. analysis precarious the common law. Under its majority jury trial, no to a and determines there is may compel concludes that a circuit court to settle its claims. Contrary majority, I conclude that 131. to the against employee's common cause of action law abrogated by party tortfeasor not

third was Compensation employee's Worker's Act. Because an a third common law cause of action preexisted Constitution tortfeasor Wisconsin day, Constitution re- continues this Wisconsin apply quires trial to such a claim. that the to a Accordingly, compel I that the court cannot conclude respectfully I here, settlement dissent.

¶ I am authorized to state that Chief Justice ‍​‌‌​​​‌​‌​​‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌‌‌​​​‌‌‌​​​​‌‌​​‌​‍joins SHIRLEY S. ABRAHAMSON this dissent.

Case Details

Case Name: Russell Adams v. Northland Equipment Company, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Jul 22, 2014

Citation: 850 N.W.2d 272

Docket Number: 2012AP000580

Court Abbreviation: Wis.