*1 WAGNER, Jr., Marvin Wagner, Carol and Mt. Morris-Aurora Mutual Insurance Company,
Plaintiffs-Appellants, DISSING, Koch, and Leroy Audrey Waushara County, and General Casualty Company
Wisconsin, Defendants-Respondents.† Appeals
Court 14, 1987. September No. 86-1839. on Submitted briefs Decided October 1987. (Also reported 655.) in 416 N.W.2d to review Petition denied. † *4 plaintiffs-appellants the
For the cause was sub- Philip mitted the on briefs of A. Munroe and Di Renzo Bomier, & of Neenah. defendants-respondents
For the was cause Miller, submitted on the brief of John R. Miller and Portage, Rogers Owens, of & and Dean R. Dietrich and Mulcahy Wherry, S.C., & of Wausau. Sundby, P.J., Gartzke,
Before Eich and JJ. Wagner EICH, J. Marvin and Carol and their Compa- insurer, Mt. Morris-Aurora Mutual Insurance ny, appeal summary judgment dismissing from a their damage against County, insurer, action Waushara its (collectively, employees county”). and two its "the Wagners damages resulting sued for from the by R.S., destruction of their barn a fire started They foster child in county care. their claimed that negligent investigating propensi- was R.S.’s engage ty behavior, in destructive it agreed provide breached a contract in which Wagners prior place- information about R.S. to the ment. The also contend that the Casualty conspired deny General their claim for payment considering of the loss without the merits of Finally, insurer, Morris, the claim. Mt. subrogation rights paid asserted for sums to Wagners under their insurance contract. The trial granted court motion dismiss the conspiracy cause of action for failure to state a claim granted summary judgment dismissing the re- complaint. mainder *5 (1)
The issues are: whether the notice of claim imposes specific statute, 893.80, Stats., sec. duties or by county evaluating standards to be observed the in (2) (1983-84), pre- claims; 48.627, whether sec. Stats. validly-stated against cludes otherwise actions the county damages by parents for suffered foster as a (3) placed result of acts of children in their care; Wagners’ complaint whether the states a cause of against county action (4) for breach of contract; and support whether the affidavit filed in summary judgment prima of its motion for states a defense to the action. facie imposes 893.80, Stats., We conclude that sec. no special evaluating duties on the claims, and (1983-84), 48.627, that sec. Stats. does not bar the negligence and contract claims. We also hold that the Wagners’ complaint negli- states a cause of action in gence county’s and contract and that the motion for summary judgment should have been denied because supporting affidavit failed to state a defense. We portion judgment granting therefore affirm that motion to dismiss the fourth cause of complaint judgment action and reverse respects. all other
I. THE MOTION TO DISMISS legal sufficiency A motion to dismiss tests the complaint; pleadings and because we construe liberally granted only motion, on such a it will be if it "quite clear that under no conditions can the plaintiff Cameron, recover.” Evans 121 Wis. 2d (1985) (citations omitted). We *6 legal Wagners believe there is no basis on which the their could recover on fourth of cause action. complaint alleges county The that the and Gener- conspired Casualty deny al to the claim regard depriving merits,” "without due to [its] thus process "rights granted them of due of and law of the 893.80, to 893.80, them sec. Wis. Stats.” Section provides, among things, Stats., other that no action may brought against governmental subdivision, be any agencies county, employees, here the or of its or unless the claimant first files a notice of in claim proper properly county filed, form. Once a claim is may pay part deny in the claim or in or If whole it. any county fails to take action on the claim within 120 893.80(l)(b). days, it is to deemed be disallowed. Sec. Wagners’ argument grounded The is on the proposition legal county "duty fairly that the has a they claims, evaluate” all such and cite Schwartz v. (1969), Milwaukee, 119, 168 43 Wis. 2d 59.07(3), imposing duty. Stats., sec. as Schwartz municipal statute, dealt with the notice-of-claim sec. 62.25, Stats., and the was issue whether a was notice exceeding void because it in an stated claim amount municipal statutory $25,000 limitation on liabili ty. The court ruled that: provide
These
do not
statutes
that a claim in excess
$25,000
of
be
or
must
stated at that
limit
be void. It
duty
honestly
is
of
claimant
state the
amount of his claim
and it
whatever
is
is the
and,
duty
city
verify
this amount
if there
$25,000.
Id.
liability,
to allow it
not
excess of
at
We not the dictum in as Schwartz creating any duty county on the other than that
imposed by deny 893.80, Stats., sec. which is to pay part, claim or to it in whole or in or to allow it to by operation days. be denied of law after 120 Section 59.07(3)(a), simply general Stats., states that one of the powers possesed by county "[e]xamine boards is to county settle all accounts of the claims, and all against county demands or causes of action imposes specific issue duty orders therefor.” It no
on the to evaluate of notices claims under particular any 893.80 sec. manner. Figgs City also cite Milwaukee, (1984), support
121 Wis. 2d
Section bars a bringing against from suit the unless two (1) precedent filing conditions are met: the of a written days giving notice of claim within 120 of the event rise (2) county’s claim; to the the disallowance of the plaintiff claim. disallowed, Until the claim is the has right bring no to an action. The failure to grant deny days or the claim within 120 after its presentation equivalent is the functional of "disallo-
938 893.80(l)(b) purposes for wance” statute. Section provision pre- is an "automatic” disallowance which languishing indefinitely vents claims from and as- plaintiff opportunity sures to seek other forms of relief within a reasonable time. It does not create a right in the claimant to have the claim considered any specific manner or fashion. acknowledged Figgs
Indeed, the court only purpose [ statutes to ] notice-of-claim is "afford municipality opportunity compromise an litigation.” [the] settle claim without Id. at quoting Seamandel, N.W.2d at from Gutter v. (1981). 2d Wis. We decline Wagners’ invitation add the statute or read rights existing statutory language. additional into the. willing principles Nor are we to extend of insur- company liability municipal ance "bad faith” tort Wagners’ argument point claim cases. The on this undeveloped, largely and we decline to consider correctly further. The trial court dismissed the fourth complaint. cause action amended II. SUMMARY JUDGMENT summary judgment turnWe to the issues. procedures applicable *8 summary judg to review of Plat, in ments are summarized In re Cherokee Park (Ct. App. 2d Wis. 582-83 1983). complaint We look first to the to determine Only does, it if whether states claim for relief. do responsive pleading joins we consider whether the the joined, If issue. the issue is we then look the moving party they affidavits of the to see whether evidentiary prima contain facts sufficient to state a moving or, if the is the case for relief defendant facie party, prima determine, If defense. we so we facie opposing party’s next examine the affidavits to see genuine fact, there is a issue of material or whether conflicting may whether reasonable inferences be undisputed question If drawn from facts. either is necessary affirmative, answered disposition the a trial is summary judgment on case is improper. Only along way if each test is met the appropriate summary judgment remedy. an question Wagners’ The first is whether the com- plaint guided action, states a cause of and we are inquiry by applicable this the same rules to motions to upon dismiss for failure to state a claim which relief granted. may alleges be The first cause of action that county, through employees, "negligent its was failing properly investigate evaluate and [R.S.] to propensities [his] ascertain to commit destructive and illegal acts such as fire ....” claim negligence, county that, as a result of this should they $48,045 be held liable for the loss suffered when destroyed R.S. started the fire that their barn. The alleges county second cause of action that Agreement” breached the terms of a "Foster Home among things, states, which other provide pertinent [t]o "AGREES ... all reliable infor- help parents mation available [the] foster decide accept placement.” whether or not to this The third subrogation cause of action is the insurer’s claim. The paid insurer, Morris, $11,774 Mt. to the Wagners for loss of their barn and claims that it is subrogated Wagners’ rights against to the payment. extent of that *9 pleading”
Under Wisconsin’s rules, "notice a complaint may be dismissed for failure to state a claim appears only certainty if "it to a that no relief can be granted any plaintiffs under set of facts which could prove support Quesenberry [it].” of v. Milwaukee County, 685, 690, Wis. 2d (1982). We have set forth the substance of the com- plaint, allegations and we consider that are adequate minimally negligence to state claims for And, breach of contract. because Mt. Morris’s claim strength stands or claims, falls on the it, too, is sufficient. argues, negli- however, that both the
gence and contract causes of action should be dis- recovery missed because there can be no as a matter of Specifically, law. 48.627, it contends that sec. Stats. (1983-84), provides remedy the exclusive for foster parents damaged by placed of acts children in their addition, In care. maintains contract claim be must dismissed because the docu- legal ment claimed to be contract has no status. negligence claim, fire, As to the on the date of the (1983-84), provided 48.627, June sec. Stats. as follows: parent depart-
Foster insurance. The [Wisconsin] may ment and Social ... ... Health [of Services] purchase damages insurance cover cost parent or a by sustained a foster member of the parent’s family act foster as result of the care, parent’s foster child the foster subject extent not covered other insurance policy. contained in the limitations *10 argues contemplates the statute that county will their own parents carry foster homeowners insur- damages ance for suffered as a result of the child’s acts, and that the state appropriate will funds to purchase insurance to cover excess It any liability. this insurance parents’ contends that constitutes damage exclusive recourse for caused child. any by the with agree We that a successful foster program requires cooperative care a effort part on the child, parents, all "members team” —the agency together work the child’s best —to interest, among and that lawsuits the participants can be inimical to those But it goals. quite step from acceptance 48.627, of that notion to declaring that sec. (1983-84), Stats. effectively shields the from for the responsibility negligence results of its or the breach of its contracts program providers. with service
Construction of a begins statute with its language. If language unambiguous, is clear and go we need further, no for the primary source of inter- statutory pretation of the statute itself. Robert language is the LIRC, Hansen Inc. v. 323, 332, Trucking, 126 Wis. 2d (1985). 151, 337 N.W.2d 155 If the statute is clear on its face —if we can ascertain meaning its resort by language its give alone —we effect to that language and need not look to "extrinsic aids” or judicial rules Denter, State v. construction. 121 Wis. 2d 555, 357 State Historical Society v. (1984); 557 Maple 246, 252-53, Bluff, 792, Wis. 2d 332 N.W.2d (1983).
We cannot read plain into the language of sec. 48.627, (1983-84), Stats. any intent to bar otherwise validly-stated negligence or contract claims asserted against parent. county by simply a foster The statute recognizes parents may may that foster or not have insurance, homeowners partment and that the Wisconsin De- may purchase of Health and Social Services protect parents injury insurance foster from or damage caused the child which are not otherwise against. insured would We have rewrite the statute may view, conform to the and this we not Okray Co., Inc., do. State v. Produce 132 Wis. 2d (Ct. 1986). App. alleged Nor do we believe that contract on *11 which base their second cause of action is a unenforceable as matter of law. The document is part complaint.
made a It is entitled "Foster Agreement,” headings, Home it two contains "Agency Agrees” Agree.” and "Foster Parents Follow- ing heading dealing each a is list ten items with the placement, provision Agrees” "Agency and one in the provide pertinent column states as follows: "To all help parents reliable information to available foster accept placement.” decide whether or not to this As complaint alleges county indicated, the that the failed provide pertinent to information about R.S. in viola- agreement. tion of argues
The there was no consider- legal ation for the contract because a was under obligation place to R.S. in a foster home result as a proceedings juvenile persuaded. court. areWe not If governmental legal entity’s obligation perform a designated function were held to all obviate consider- provid- ation and thus void its contracts with service highway law, ers as a matter of and construction suppliers contractors, institutions, food and thou- contracting sands of other individuals and businesses governmental agencies myriad with for a of services
943 legal agency without recourse should the would be receiving pay refuse to for it. the service Wagners agreed placement to R.S.’s in their perform variety of services connec home and placement, "[i]t is ... hornbook law tion with that promises that mutual are sufficient consideration” for Corp. v. Commercial Disc. a contract. Chudnow Const. Corp., (1970). 653, 658, 180 2d Wis. may note, too, that there is consideration take the We promisee; detriment incurred form of a performance that "detriment” has been defined as promisee] "any [the of slightest act which occasioned inconvenience, trouble or and which he was obliged perform.” not Oby, First Wisconsin Nat. Bank v. (1971), 1, 5-6, 454, 457 2d Wis. (3d ed.), pp. quoting Williston, 375-80, Contracts secs. 102A. agree "agreement” with the that the
We legal precise very form and contains some not 48.57(l)(h), general language. Stats., But sec. autho- any parent... for rizes counties "to contract with parties any child,” care and maintenance of and the *12 signed each a document which the "a- gree[d]” pertinent provide all available information help accept to the them decide whether to placement. complaint adequate R.S.’s We consider the to state a claim for breach of contract.
Having complaint, determined that on its negligence face, states claims for and breach of by 48.627, contract which are not barred sec. Stats. (1983-84), county’s consider the we next affidavits they prima see whether establish a defense to facie either or both claims.
944
county’s
supported
single
by
The
motion is
a
four-
paragraph
affidavit
which R.S.’s mother discusses
unexplained
involving
an otherwise
incident
R.S. and
sister,
his
states
R.S.’s own statement
in a
deposition
family
that he once burned down the
garage
that,
was untrue. Aside from
the motion
pleadings,
it is
recites that
also based on "the
case_”
depositions
record, and the
However,
this
pleadings may
stage
not be relied on at this
summary judgment proceedings, In re Cherokee Park
Plat,
119,
A defendant is not entitled to
presented conclusively
"unless
facts
show that the
plaintiffs action has no merit and cannot be main-
Milwaukee,
tained.” Goelz v.
10 Wis. 2d
103
(1960).
right
summary
judg-
N.W.2d
553
clarity
ment must be demonstrated "with such
as to
controversy.”
leave no room for
Kraemer
Bros.
Co.,
555, United States Fire Ins.
2dWis.
(1979).
prima
defense,
To state facie
evidentiary
which,
the affidavits must state
if
facts
uncontroverted, would resolve all factual issues in the
Kussuba,
Bauch,
defendant’s favor. Walter
Inc. v.
*13
945
(1968).
648, 665,
387,
391
158 N.W.2d
Wis. 2d
single,
these
affidavit does not meet
brief
standards,
does not make out
"[i]f the defendant
and
go
summary judgment
prima
no
for
we need
case
facie
Bros,
566-67,
are to resolution in ceedings. summary judgment "It case when is rare grounded granted negligence.” can be in an action on Altenbach, 19 Wis. Dottai v. 2d (1963). 41, 42 This not a case. such part, Judgment By re- affirmed Court.— part, and cause for further versed remanded opinion. proceedings consistent with this *14 (dissenting part). SUNDBY, J. Plaintiffs’ important fourth cause of action raises issues of interpretation statutory public policy which can upon evidentiary best be decided an record. See Scarpaci County, 663, v. Milwaukee 96 Wis. 2d (1980) (whether 292 N.W.2d medical examin- qualified immunity er immunity has absolute or upon initially evidentiary better made an record and pleading stage); Coffey not at the Milwaukee, (1976) Wis. 2d 140-41 (complex municipal liability arising issue of tort out of alleged negligence building inspector carrying of a inspections out fire better determined after a full trial).
Plaintiffs’ fourth cause of action raises these (1) imposes duty issues: 893.80, Stats., Whether sec. a upon governing body government of the local corporation, agency subdivision, or with whom a claim (2) is filed to evaluate that claim. Whether failure of governing body a evaluate claim filed under sec. deprives process 893.80 the claimant of due of law (3) under the federal and state constitutions. Whether conspiracy governmental entity between the local deny and its insurer to claims filed under sec. 893.80 without consideration is actionable. upon
I believe we can better address these issues reasons, full For record. these I would not dismiss plaintiffs’ fourth cause of action.