Ann Cattau v. National Insurance Services of Wisconsin, Inc. ( 2019 )

2019 WI 46
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP493
COMPLETE TITLE: Ann Cattau, Thomas M. Beck, Linda Beckwith,
Ardyth Bergstrom, Vicki Christman, Gail W.
Cismoski,Kathleen A. Curtis, Janice DeMenter,
John Dobbins, Elsie Evenson, Kris Grasley, Gary
Haffeman, Kristine Haffeman, Kathy J. Hager,
Gail Harrmann, Joann Harrell, Mary Louise
Hildebrandt, Lexann Hitchcock, Jo Anne Holden,
Karla M. Huston, Susan R. Johnson, Mary K.
Jones, Dorothi A. Karisny, Chuck Knoeck,
Lawrence H. Krebs, Diane D. Krueger, Helen L.
Kurka, Judith J. Kurka Nagel, James Lantz, Jane
E. Lantz, Thomas Marzahl, Mary Joy Mayer,
Marjorie R. Murphy, Bruce C. Nufer, Anna P.
Olson, Sharon O'Reilly, Patricia Ormston, Mark
Peerenboom, Sue Peterson, James S.
Piepenbrink, Anna Mae Prem, Jane Reimer, Mary J.
Resch, Cynthia A. Rieck, Dianne Roth, Lucy
Rumpf, Susan M. Schug, David K. Sebora, Suann M.
Senso, Karla Sheehan, Sandra L. Smith, Robin L.
Snell, Mary C. Tieman, Teresa D. Walotka,
Patricia M. Waskawic, Mindy Weichmann, Susan
Westphal, Vicki Wippich, Christine Wollerman,
James A. Zipple and Levern J. Zwirchitz,
Plaintiffs-Appellants-Petitioners,
James Shipman,
Plaintiff,
v.
National Insurance Services of Wisconsin, Inc.
and MidAmerica Administrative & Retirement
Solutions, Inc.,
Defendants-Respondents,
Neenah Joint School District and Community
Insurance Corporation,
Intervenors-Respondents.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 383 Wis. 2d 600,918 N.W.2d 127
(2018 – unpublished)
OPINION FILED: April 30, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 18, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: John A. Jorgensen
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there was a
brief filed by Charles J. Hertel, Heath G. Mynsberge, and
Dempsey Law Firm, LLP, Oshkosh. There was an oral argument by
Heath G. Mynsberge.
For the defendants-respondents, there was a brief filed by
Joseph L. Olson, Mark A. Lotito, and Michael Best & Friedrich
LLP, Milwaukee. There was an oral argument by Joseph L. Olson.
For the intervenor-respondent Community Insurance
Corporation, there was a brief filed by Lori M. Lubinsky,
Michael D. Hahn, and Axley Brynelson, LLP, Madison.
For the intervenor-respondent Neenah Joint School District,
there was a brief filed by Ronald Stadler, Jonnathan Sacks, and
Mallery & Zimmerman, s.c., Milwaukee.
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2019 WI 46
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP493
(L.C. No. 2013CV1149)
STATE OF WISCONSIN : IN SUPREME COURT
Ann Cattau, Thomas M. Beck, Linda Beckwith,
Ardyth Bergstrom, Vicki Christman, Gail W.
Cismoski, Kathleen A. Curtis, Janice DeMenter,
John Dobbins, Elsie Evenson, Kris Grasley, Gary
Haffeman, Kristine Haffeman, Kathy J. Hager,
Gail Harrmann, Joann Harrell, Mary Louise
Hildebrandt, Lexann Hitchcock, Jo Anne Holden,
Karla M. Huston, Susan R. Johnson, Mary K.
Jones, Dorothi A. Karisny, Chuck Knoeck,
Lawrence H. Krebs, Diane D. Krueger, Helen L.
Kurka, Judith J. Kurka Nagel, James Lantz, Jane
E. Lantz, Thomas Marzahl, Mary Joy Mayer,
Marjorie R. Murphy, Bruce C. Nufer, Anna P.
Olson, Sharon O'Reilly, Patricia Ormston, Mark
Peerenboom, Sue Peterson, James S. Piepenbrink,
Anna Mae Prem, Jane Reimer, Mary J. Resch, FILED
Cynthia A. Rieck, Dianne Roth, Lucy Rumpf,
Susan M. Schug, David K. Sebora, Suann M. APR 30, 2019
Senso, Karla Sheehan, Sandra L. Smith, Robin L.
Snell, Mary C. Tieman, Teresa D. Walotka, Sheila T. Reiff
Patricia M. Waskawic, Mindy Weichmann, Susan Clerk of Supreme Court
Westphal, Vicki Wippich, Christine Wollerman,
James A. Zipple and Levern J. Zwirchitz,
Plaintiffs-Appellants-Petitioners,
James Shipman,
Plaintiff,
v.
National Insurance Services of Wisconsin, Inc.
and MidAmerica Administrative & Retirement
Solutions, Inc.,
Defendants-Respondents,
Neenah Joint School District and Community
Insurance
Corporation,
Intervenors-Respondents.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PER CURIAM. We review an unpublished decision of the
court of appeals1 affirming an order of the circuit court that
dismissed plaintiffs' claims.2 Plaintiffs, a group of 61 retired
Neenah teachers and administrators, sued MidAmerica
Administrative & Retirement Solutions, Inc. (MidAmerica) and
National Insurance Services of Wisconsin, Inc. (NIS).
MidAmerica and NIS moved to dismiss for failure to state a claim
upon which relief may be granted. The plaintiffs attempted to
plead breach of fiduciary duty, negligent misrepresentation,
strict responsibility misrepresentation, and negligence, all
arising from MidAmerica and NIS's alleged mismanagement of their
retirement benefits.
1 Cattau v. Nat'l Ins. Servs. of Wis., Inc., No. 2016AP493,
unpublished slip op. (Wis. Ct. App. June 13, 2018).
2 The Honorable John A. Jorgenson of Winnebago County
presided.
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No. 2016AP493
¶2 The court of appeals affirmed the circuit court's
dismissal of plaintiffs' claims against MidAmerica and NIS. The
court of appeals held that our decision in Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, 356 Wis. 2d 665, 849
N.W.2d 693, created a new, heightened pleading standard in
Wisconsin, and that under this new standard, plaintiffs had
failed to state a claim upon which relief may be granted.
¶3 We granted review and unanimously conclude that our
decision in Data Key did not change Wisconsin's pleading
standard as previously articulated in Strid v. Converse, 111
Wis. 2d 418, 422-23, 331 N.W.2d 350 (1983). Accordingly, we
reverse the decision of the court of appeals in this regard.
However, notwithstanding that unanimous conclusion, we are
equally divided as to whether the plaintiffs have stated a claim
upon which relief may be granted against MidAmerica or NIS based
on the Data Key/Strid standard. Therefore, the decision of the
court of appeals is affirmed by an equally divided court.
Wingra Redi-Mix, Inc. v. Burial Sites Pres. Bd., 2018 WI 54, ¶1,
381 Wis. 2d 601, 912 N.W. 392.
¶4 To explain further, the pleading standard we set out
in Data Key is consistent with the pleading standard in Strid,
and is grounded in Wis. Stat. § 802.02(1)(a)'s (2017-18)
requirement that a complaint contain "[a] short and plain
statement of the claim, identifying the transaction or
occurrence or series of transactions or occurrences out of which
the claim arises and showing that the pleader is entitled to
relief." When determining whether a complaint states a claim
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No. 2016AP493
upon which relief may be granted, courts must "accept as true
all facts well-pleaded in the complaint and the reasonable
inferences therefrom." Data Key, 356 Wis. 2d 665, ¶19 (citation
omitted). "If the facts reveal an apparent right to recover
under any legal theory, they are sufficient as a cause of
action." Strid, 111 Wis. 2d at 423 (citation omitted).
¶5 While courts must accept all well-pleaded facts as
true, courts cannot add facts to a complaint, and do not accept
as true legal conclusions that are stated in the complaint.
Data Key, 356 Wis. 2d 665, ¶19. For this reason, "a formulaic
recitation of the elements of a cause of action" is not enough
to state a claim upon which relief may be granted. Id., ¶25.
¶6 "[T]he sufficiency of a complaint depends on
substantive law that underlies the claim made because it is the
substantive law that drives what facts must be pled." Id., ¶31.
If proof of the well-pleaded facts in a complaint would satisfy
each element of a cause of action, then the complaint has stated
a claim upon which relief may be granted. Id., ¶21; see also
Strid, 111 Wis. 2d at 422-23 ("It is the sufficiency of the
facts alleged that control the determination of whether a claim
for relief is properly plead.").
¶7 The defendants argue that by setting out the pleading
standard employed by the United States Supreme Court in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we changed
Wisconsin's pleading standard to a heightened "plausibility"
standard. However, as we explained in Data Key, we interpret
the Supreme Court's decision in Twombly as being consistent with
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No. 2016AP493
Strid. Data Key, 356 Wis. 2d 665, ¶30. Therefore, Data Key
controls Wisconsin's pleading standard and it reaffirmed Strid.
Id.
¶8 Accordingly, because we unanimously conclude that our
decision in Data Key did not change Wisconsin's pleading
standard as previously articulated in Strid, we reverse the
decision of the court of appeals' interpretation of Data Key.
However, notwithstanding our unanimous conclusion, we are
equally divided as to whether the plaintiffs have stated a claim
upon which relief may be granted against MidAmerica or NIS based
on the Data Key/Strid standard. Therefore, the decision of the
court of appeals is affirmed by an equally divided court.
Wingra Redi-Mix, 381 Wis. 2d 601, ¶1.
By the Court.—The decision of the court of appeals is
affirmed.
¶9 SHIRLEY S. ABRAHAMSON, J., withdrew from participation
before oral argument.
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No. 2016AP493
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