Russell Adams v. Northland Equipment Company, Inc. ( 2014 )

2014 WI 79
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP580
COMPLETE TITLE: Russell Adams,
Plaintiff-Appellant-Petitioner,
v.
Northland Equipment Company, Inc., Cincinnati
Insurance
Company and The League of Wisconsin
Municipalities Mutual
Insurance Company,
Defendants-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
347 Wis. 2d 549, 830 N.W.2d 722
(Ct. App. 2013 – Unpublished)
OPINION FILED: July 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 4, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: James Welker
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Thomas E. Greenwald, Rockford, and oral argument by Thomas E.
Greenwald.
For the defendants-respondents, Northland Equipment Company
and Cincinnati Insurance Company, there was a brief by James M.
Ryan, Dustin T. Woehl, and Kasdorf, Lewis & Swietlik, S.C.,
Milwaukee, and oral argument by James M. Ryan.
2
2014 WI 79
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP580
(L.C. No. 2010CV2126)
STATE OF WISCONSIN : IN SUPREME COURT
Russell Adams,
Plaintiff-Appellant-Petitioner, FILED
v.
JUL 22, 2014
Northland Equipment Company, Inc., Cincinnati
Insurance Company and The League of Wisconsin Diane M. Fremgen
Clerk of Supreme Court
Municipalities Mutual Insurance Company,
Defendants-Respondents.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision
of the court of appeals1 affirming an order of the Rock County
Circuit Court2 that compelled plaintiff Russell Adams to accept a
settlement offer from defendant Northland Equipment Company,
Inc. that Adams' employer's worker's compensation insurer, The
League of Wisconsin Municipalities Mutual Insurance Company
(LWMMIC), chose to accept.
1
Adams v. Northland Equip. Co., No. 2012AP580, unpublished
slip op. (Wis. Ct. App. Mar. 7, 2013).
2
The Honorable James Welker presided.
No. 2012AP580
¶2 Adams sued Northland and its insurer, Cincinnati
Insurance Company, pursuant to Wis. Stat. § 102.29(1) (2011-12)3
for personal injuries Adams sustained while plowing snow for his
employer, the Village of Fontana.4 Northland offered $200,000 to
settle Adams' claim. LWMMIC accepted Northland's offer and
moved the circuit court to compel Adams to accept it as well.
The circuit court granted LWMMIC's motion.
¶3 Adams contends that the circuit court erred because a
worker's compensation insurer cannot compel an employee to
accept settlement of a third party tort claim. Adams reasons
that Wis. Stat. § 102.29(1) cannot be interpreted to permit the
circuit court to compel settlement because such an
interpretation would violate his right to a jury trial, which
Article I, Section 5 of the Wisconsin Constitution secures. He
also contends that the circuit court's order violates procedural
due process and is the product of an erroneous exercise of
discretion because, among other things, the circuit court did
not conduct an evidentiary hearing.
¶4 We conclude that a circuit court may compel an
employee to accept settlement of the claim the legislature
created in Wis. Stat. § 102.29(1). In such a claim, both the
employee and the worker's compensation insurer share the right
to sue third parties; the employee and the worker's compensation
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
4
LWMMIC was named as a defendant, but its interest was that
of a plaintiff pursuant to Wis. Stat. § 102.29(1).
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No. 2012AP580
insurer have an equal voice in the prosecution of the claim;
recovery from the claim is apportioned in the manner described
in § 102.29(1)(b); and the circuit court is empowered to resolve
any disputes arising between the employee and the worker's
compensation insurer during the prosecution of their claim,
including those disputes involving settlement.
¶5 We also conclude that our interpretation of Wis. Stat.
§ 102.29(1) does not violate Adams' right to a jury trial
because the claim § 102.29(1) creates is not the counterpart of
a cause of action at law recognized at the time of the adoption
of the Wisconsin Constitution. We further conclude that the
circuit court's authority to compel an employee to accept
settlement does not violate procedural due process because
judicial resolution of disputes is part of the statutory claim.
Lastly, we conclude that the circuit court appropriately
exercised its discretion by defining the dispute, taking stock
of the relative positions of the parties and considering matters
that impacted the fairness of the settlement. Accordingly, we
affirm the decision of the court of appeals.
I. BACKGROUND
¶6 This case concerns personal injuries Adams sustained
during the course of his employment with the Village of Fontana.
On February 21, 2009, Adams was plowing the driveway to the
Village Hall when the blade of his plow struck the lip of a
sidewalk. Adams claims that when the plow came into contact
with the lip, the truck stopped suddenly and threw him up into
the ceiling of the cab of the truck, "causing excessive
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No. 2012AP580
compression forces to be applied to his spine." The truck then
continued past the end of the driveway, crossed the street, and
struck a curb, where it came to a final stop and another plow
operator discovered it. Adams was not wearing a seat belt at
the time of the accident.
¶7 The plow was equipped with springs that were designed
to absorb some of the shock when the plow experienced a certain
amount of resistance. The springs were to reduce the shock by
allowing the bottom of the plow to rotate toward the truck, or
"trip." In order to function correctly, the springs needed to
be tight enough to plow snow, but loose enough to trip when the
plow hit fixed obstacles.
¶8 Before Adams' accident, the Village had been
experiencing problems with the plow Adams used in that it was
tripping too easily when pushing heavy snow. The Village
brought the plow to Northland for repair.
¶9 Northland explained that the two Henderson brand
springs on the plow were worn out and in need of replacement.
Northland did not have the exact Henderson brand replacement
springs for the plow, and could not obtain them before an
expected snowstorm. Therefore, Northland and the Village
decided to replace the Henderson brand springs with Western
brand springs that Northland had on hand. The replacement
springs worked without incident for the year and a half prior to
Adams' accident.
¶10 As a result of the accident, Adams suffered permanent
injury to his spine. He brought personal injury claims against
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No. 2012AP580
Northland and its insurer, alleging negligence in the repair of
the plow and strict liability for the malfunction of the
replacement springs. LWMMIC, which had paid Adams $148,332 in
worker's compensation benefits for medical expenses and
temporary total and permanent partial disability as of the date
of the motion to compel, participated in Adams' suit pursuant to
the claim created by Wis. Stat. § 102.29(1).
¶11 Northland and Cincinnati Insurance moved for summary
judgment, arguing that Adams could not prove negligence or
causation. They asserted that the deposition testimony of
Adams' expert, Robert Wozniak, showed that Wozniak could not
"establish[] a standard for a safe tension level in the snow
plow's springs" and therefore, Adams could not prove that "this
accident would not have happened at different tensions."
¶12 At the summary judgment motion hearing, the circuit
court pressed Adams' attorney, Thomas Greenwald, on this issue
asking, "So [Northland] put on [springs] that ha[d] more
tension. Now what's the evidence going to be that that was
negligence?"
¶13 Greenwald responded that Wozniak was "going to testify
that that created an unreasonable risk of harm by adding that
much spring, requiring that much tension, and that unreasonable
risk of harm was that the plow would not trip when required to
trip and that that unreasonable risk of harm is what caused this
event to occur." As to the basis for this testimony, Greenwald
explained that Wozniak's opinions were part of a memo Greenwald
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No. 2012AP580
prepared for Wozniak and "asked at his deposition are these
[Wozniak's] opinions, and [Wozniak said] yes."
¶14 After explaining that Greenwald would not be allowed
to prove Adams' case at trial by "present[ing Wozniak] with some
legal gobbledy gook and ask[ing] him to confirm it," the circuit
court denied defendant's summary judgment motion. The court
explained its decision as follows:
I think Mr. Greenwald is spitting into an awfully
strong wind here, and it may be that even this case
will get dismissed at the end of the plaintiff's case,
I don't know, but I do think that there is at least
that minimum quantity of opinion by an engineer that
says that this is an accident that was caused by
springs that were too tight.
How a jury——I'm sure [Wozniak is] going to be
asked at trial, 'Well, how tight would have been tight
enough?' And I——it will be interesting to see what his
answer [i]s. But I think that this is not a proper
case that should be decided on summary judgment, and
for that reason the motion is denied.
¶15 Four days after the circuit court denied Northland's
summary judgment motion, LWMMIC received a $200,000 settlement
offer. LWMMIC's attorney contacted Greenwald, who informed
LWMMIC that Adams would not accept the offer.
¶16 LWMMIC then attempted to negotiate resolution with
Adams. It proposed that in exchange for relinquishing control
of the litigation to Adams, Adams release LWMMIC from liability
for future worker's compensation payments. After Adams rejected
LWMMIC's proposal, LWMMIC unilaterally accepted the settlement
offer and moved the circuit court to compel Adams to accept it
as well.
6
No. 2012AP580
¶17 The circuit court received submissions from both
parties and held a hearing on the motion. LWMMIC explained that
it wished to accept the settlement offer because of the risks of
a defense verdict at trial, citing concerns about "comparative
fault, seatbelt negligence, and damages." LWMMIC also said that
it thought Adams' case had "not improved" since the summary
judgment hearing because Robert Krenz, an expert witness for the
defense, tested the plow and found that it "actually does
trip[,] even at just 2 ½ m.p.h. with very little movement of the
driver."
¶18 Adams responded that: (1) a court has no authority to
compel an employee to accept settlement; (2) if a court had such
authority, an evidentiary hearing to evaluate the merits of the
case would be necessary before compelling settlement; and (3)
the settlement offer in the present case is "grossly inadequate"
and "not in the best interest" of Adams.
¶19 The circuit court granted LWMMIC's motion to compel
settlement. It concluded that it had the authority to do so
under Dalka v. American Family Mutual Insurance Co., 2011 WI App
90, 334 Wis. 2d 686, 799 N.W.2d 923; that an evidentiary hearing
was unnecessary; and that the risk of a finding of no liability
at trial exceeded the possibility of a verdict that exceeded the
settlement offer.
¶20 Adams appealed and the court of appeals affirmed. As
with the circuit court, the court of appeals concluded that
Dalka controlled the issue of authority to compel settlement.
As to Adams' argument about the evidentiary hearing, it
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No. 2012AP580
concluded that due process did not require a "mini-trial" of
Adams' claims because when we affirmed an order compelling a
compensation insurer to accept settlement in Bergren v. Staples,
263 Wis. 477, 57 N.W.2d 714 (1953), we did not require a mini-
trial. Dalka, 334 Wis. 2d 686, ¶12. Lastly, it concluded that
the circuit court appropriately exercised its discretion because
it inquired into the nature and strength of the case, assessed
the risk of a no liability jury verdict, and came to a logical
conclusion. We affirm the decision of the court of appeals.
II. DISCUSSION
A. Standard of Review
¶21 This case requires us to interpret and apply portions
of Wis. Stat. § 102.29. Statutory interpretation and
application are questions of law for our independent review,
although we benefit from the analyses of the court of appeals
and circuit court. State v. Novy, 2013 WI 23, ¶21, 346 Wis. 2d
289, 827 N.W.2d 610.
¶22 Whether a claim made pursuant to Wis. Stat.
§ 102.29(1) includes the right to a jury trial such that
compelling an employee to accept settlement violates the
employee's right to a jury trial under Article I, Section 5 of
the Wisconsin Constitution is also a question of law for our
independent review. State v. Schweda, 2007 WI 100, ¶12, 303
Wis. 2d 353, 736 N.W.2d 49; Vill. Food & Liquor Mart v. H & S
Petroleum, Inc., 2002 WI 92, ¶7, 254 Wis. 2d 478, 647 N.W.2d
177.
8
No. 2012AP580
¶23 Whether a party has been denied procedural due process
is yet another question of law for our independent review.
State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63.
And finally, we review a circuit court's decision to exercise
the authority granted to it under Wis. Stat. § 102.29(1) to
resolve disputes in the prosecution of a § 102.29(1) claim under
an erroneous exercise of discretion standard. See Bergren, 263
Wis. at 485.
B. Worker's Compensation Principles
¶24 "Worker's Compensation is a legislatively enacted
compromise designed to bring employers and employees together in
a mutually beneficial scheme of guaranteeing benefits in the
event of work-related injury and disease." Nelson v. Rothering,
174 Wis. 2d 296, 302, 496 N.W.2d 87 (1993). The major goal of
worker's compensation is to "provid[e], in the most efficient,
most dignified, and most certain form, financial and medical
benefits for the victims of work-connected injuries." 1 Lex K.
Larson, Larson's Workers' Compensation Law § 1.03[2], at 1-5
(2012).
¶25 By enacting worker's compensation, "the legislature
intended to impose upon employers an absolute liability,
regardless of fault; and in return for this burden, intended to
grant employers immunity from all tort liability on account of
injuries to employees." Guse v. A. O. Smith Corp., 260 Wis.
403, 406-7, 51 N.W.2d 24 (1952). By entering into an employment
relationship, then, the employer and employee make it part of
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No. 2012AP580
their relationship to resolve work-related injury disputes
within the statutory worker's compensation framework.
¶26 While this statutory scheme provides an employer with
near immunity in tort, negligent third parties do not enjoy the
same benefit. An employee, employer and the payer of worker's
compensation all may sue a third party in tort under Wis. Stat.
§ 102.29(1). Nelson, 174 Wis. 2d at 300; § 102.29(1).
¶27 The distribution of proceeds from a Wis. Stat.
§ 102.29 third party claim "gives effect to the original
compromise underlying the Worker's Compensation Act by
specifying what it determined to be a reasonable apportionment
of proceeds between the parties involved," notwithstanding what
the common law would have provided. Nelson, 174 Wis. 2d at 303.
Stated otherwise, third party claims brought within the scope of
§ 102.29 are governed by the statutory scheme of worker's
compensation, not by common law. See Mulder v. Acme-Cleveland
Corp., 95 Wis. 2d 173, 177-78, 290 N.W.2d 276 (1980).
¶28 We also note that worker's compensation alters more
than just the common law rights of an employer and employee.
For instance, we have construed the worker's compensation
statute as preventing a third party tortfeasor from seeking
contribution from a negligent employer, "even though the
employer was substantially more at fault than the third party."
Id. at 177. We permitted this harsh result for the third party
who, unlike the employer and employee, gains nothing from the
worker's compensation statutes because "worker's compensation
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No. 2012AP580
laws constitute an all-pervasive legislative scheme." Id. at
180.
C. Interpretation of Wis. Stat. § 102.29(1)
¶29 We begin our interpretation of Wis. Stat. § 102.29(1)
with the language of the statute, through which the legislature
expressed the statute's meaning. Richards v. Badger Mut. Ins.
Co., 2008 WI 52, ¶20, 309 Wis. 2d 541, 749 N.W.2d 581; Wis.
Indus. Energy Group, Inc. v. Pub. Serv. Comm'n of Wis., 2012 WI
89, ¶15, 342 Wis. 2d 576, 819 N.W.2d 240. "If the meaning of
the statute is plain, we ordinarily stop the inquiry." State ex
rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000
WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
¶30 We give statutory language "its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. Because "[c]ontext is important to
meaning," we interpret statutory language "in the context in
which it is used; not in isolation but as part of a whole."
Id., ¶46. We also review statutory history and consult our own
prior decisions that examined the same statute as part of our
plain meaning analysis. See Richards, 309 Wis. 2d 541, ¶22
("statutory history is part of a plain meaning analysis"); State
v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848 ("when
engaging in statutory interpretation, we are assisted by prior
decisions that have examined the relevant statutes").
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No. 2012AP580
¶31 Wisconsin Stat. § 102.29(1) provides in relevant part:
(a) The making of a claim for compensation
against an employer or compensation insurer for the
injury or death of an employee shall not affect the
right of the employee . . . to make claim or maintain
an action in tort against any other party for such
injury or death, hereinafter referred to as a 3rd
party; nor shall the making of a claim by any such
person against a 3rd party for damages . . . affect
the right of the injured employee or the employee's
dependents to recover compensation. An employer or
compensation insurer that has paid or is obligated to
pay a lawful claim under this chapter shall have the
same right to make claim or maintain an action in tort
against any other party for such injury or
death. . . .
(b) . . . Each shall have an equal voice in the
prosecution of the claim, and any disputes arising
shall be passed upon by the court before whom the case
is pending, and if no action is pending, then by a
court of record or by the department.
¶32 Adams relies heavily on the first sentence of the
statute, reading it as 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 the compensation
insurer with "the same right" and "an equal voice in the
prosecution" thereof, Adams says that language is ineffective to
negate the "guarantee" in the first sentence. The same holds
true, according to Adams, for the language providing for
judicial resolution of disputes. He says it does not say that a
circuit court, in resolving disputes, can in any way limit the
employee's right that the first sentence grants.
¶33 We disagree with Adams. The third party claim set out
in Wis. Stat. § 102.29 differs from a personal injury claim
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No. 2012AP580
under common law because of the nature of the claim the
legislature created, which we discuss below.
1. Shared claim
¶34 Reading the statute as a whole, we conclude that the
plain language of Wis. Stat. § 102.29(1) shows that the claim
against a third party is a shared claim. In the case before us,
it is shared between Adams and the compensation insurer, LWMMIC.
Section 102.29(1) provides that an employee and a compensation
insurer have "the same right to make claim" and "an equal voice
in the prosecution of the claim." The common, ordinary, and
accepted meaning of these words plainly demonstrates that one
claimant is not favored over the other.
¶35 The first sentence of the statute does not alter the
shared nature of the claim that the statute plainly creates.
Statutory history also shows how the legislature developed the
shared claim of Wis. Stat. § 102.29.
¶36 For example, in 1911, making a claim for worker's
compensation greatly altered the employee's ability to file a
tort claim against a third party because when a worker's
compensation claim was made, it "operate[d] as an [employee's]
assignment of any cause of action in tort" to the employer.
Wis. Stat. ch. 110a, § 2394-25 (1911). In 1913, the legislature
amended the statute somewhat and added a provision that gave an
injured employee a choice about whether to accept worker's
compensation or seek relief for his injuries from a third party.
The relevant statute in 1913 provided that by making a claim
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No. 2012AP580
against a third party, an employee waived any claim for worker's
compensation from the employer. Ch. 110a, § 2394-252. (1913).
¶37 We interpret the first sentence of Wis. Stat.
§ 102.29(1) as establishing that, unlike previous versions of
the law, an employee is able to pursue a claim in tort against a
third party while maintaining a claim for worker's compensation
benefits. However, the claim created in § 102.29 is a shared
claim. That is, the employee shares the right to make such a
claim with the payer of worker's compensation benefits,
generally the compensation insurer. In such a claim, the
employee and the compensation insurer have an "equal voice" in
the claim's prosecution. Our interpretation harmonizes the
statute as a whole, giving effect to every word, and is
consistent with the statutory history underlying § 102.29. See
State v. Gilbert, 2012 WI 72, ¶39, 342 Wis. 2d 82, 816 N.W.2d
215 (in order to avoid an absurd result, "we must interpret the
statute . . . in a way that harmonizes the provisions of the
statute and gives effect to every word").
¶38 The statutory directive that the right to bring and
prosecute third party tort claims is shared leads us to the
conclusion that Wis. Stat. § 102.29 created a new type of claim
the nature of which is controlled by the statute, not by common
law. Sharing the right to bring suit with another party
necessarily alters the nature of the common law claim. See
generally Schweda, 303 Wis. 2d 353, ¶103 (Prosser, J.,
concurring in part, dissenting in part) (illustrating the
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No. 2012AP580
principle that claims often are defined, at least in part, by
who may bring them).
¶39 We begin with the decision to file a lawsuit. An
employee's decision to sue for work-related injuries under Wis.
Stat. § 102.29(1)(a) is fundamentally different than it would be
absent the statute because the employee would not have to give
the compensation insurer the "opportunity to join in the making
of such claim." The employee would be able to make choices at
the beginning of the lawsuit, such as the timing of filing the
lawsuit, the venue in which to file the lawsuit, and whom to
name as defendants, without regard to the compensation insurer.
See Antony L. Ryan, Principles of Forum Selection, 103 W. Va. L.
Rev. 167, 168 (2000) ("plaintiff's forum-selection privilege is
axiomatic to the common-law tradition"). In contrast,
§ 102.29(1)(a) imposes an obligation on both the employee and
compensation insurer to give the other notice of their actions
so that both can participate.
¶40 Furthermore, the shared nature of this third party
claim is such that when an employee declines to assert a third
party claim, a compensation insurer can sue for damages that are
personal to the employee, such as those for pain and suffering,
without joining the employee. Threshermens Mut. Ins. Co. v.
Page, 217 Wis. 2d 451, 462, 577 N.W.2d 335 (1998).
2. Division of proceeds
¶41 The proceeds of a third party claim do not belong to
the injured employee. Rather, if the Wis. Stat. § 102.29(1)
third party claim succeeds, § 102.29(1)(b)1.–3. directs how the
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No. 2012AP580
proceeds must be apportioned between the persons entitled to
bring the claim. This is a significant departure from the
common law because the statute's remedy provisions "supersede[]
the employee's [common law] right to be 'made whole.'" Id. at
462. Therefore, rather than retaining the entire amount of any
recovery for himself or herself, an employee must share that
recovery according to the statutory formula. § 102.29(1)(b)1.-
3. An employee also may be made to bear, by deduction from the
damages awarded, some of the compensation insurer's costs of
collection, including attorney fees. § 102.29(1)(b)1. and
(1)(c). Furthermore, we have repeatedly held that the statutory
distribution of proceeds scheme is not an embodiment of the
common law principle of subrogation. Bergren, 263 Wis. at 482;
Threshermens, 217 Wis. 2d at 480. Rather, it is a part of the
claim created by § 102.29.
3. Judicial resolution of disputes
¶42 Wisconsin Stat. § 102.29 also requires that disputes
between those who are bringing § 102.29 claims be resolved by
the circuit court. However, Adams argues that a compensation
insurer cannot compel acceptance of a settlement, wherein he
makes at least an implied argument that settlement is not a
"dispute" under § 102.29(1). We briefly explain why we reach
the opposite conclusion, beginning again with the plain language
of the statute.
¶43 After providing that an employee and compensation
insurer have an "equal voice" in the prosecution of their claim,
Wis. Stat. § 102.29(1)(b) provides that "any disputes arising
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No. 2012AP580
shall be passed upon by the court before whom the case is
pending." By using the term "any," the legislature chose
language that does not limit the type of disputes on which a
circuit court must pass. Additionally, our decision in Bergren,
in which we held that an employee can compel a compensation
insurer to accept a disputed settlement, would seem to foreclose
the possibility that differing opinions about whether to accept
settlement is not a "dispute" within the meaning of § 102.29(1),
as Adams contends. Bergren, 263 Wis. at 483.
¶44 We also note that although, as the circuit court
stated, Wis. Stat. § 102.29(1) does not provide a great deal of
guidance on the criteria to be used in settling disputes, the
statute's mandatory language plainly states that the circuit
court is empowered to do so. The statutory provision, "any
disputes arising shall be passed upon by the court before whom
the case is pending," is broadly stated, but that does not
create an ambiguity in the statute's meaning. See generally
Phillips v. Parmelee, 2013 WI 105, ¶¶22-23, 351 Wis. 2d 758, 840
N.W.2d 713 (concluding that the phrase, "any loss rising out
of," is broadly stated but not ambiguous).
¶45 Having concluded that the plain language of Wis. Stat.
§ 102.29(1) establishes the nature of the third party claim for
a worker's injury that includes broad authority for the circuit
court to settle disputes, we turn to Adams' claim that the
circuit court's authority cannot be so broad as to require him
to accept a settlement offer because to do so would violate his
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No. 2012AP580
constitutional right to a jury trial, which is preserved by
Article I, Section 5 of the Wisconsin Constitution.
D. Jury Trial
¶46 Adams correctly notes that when given alternative
statutory interpretations, we will select the interpretation
that results in a constitutionally sufficient statute. Am.
Family Mut. Ins. Co. v. DOR, 222 Wis. 2d 650, 667, 586 N.W.2d
872 (1998); Madison Metro. Sewerage Dist. v. DNR, 63 Wis. 2d
175, 185, 216 N.W.2d 533 (1974). Adams then argues that we
should not interpret Wis. Stat. § 102.29(1) in a way that would
allow a circuit court to compel an employee to accept settlement
because that would violate the employee's constitutional right
to a jury trial preserved by Article I, Section 5 of the
Wisconsin Constitution.
¶47 At the outset, we note that we are not presented with
a choice of two reasonable constructions of Wis. Stat.
§ 102.29(1) because the language of the statute is not
ambiguous. Rather, we evaluate Adams' argument both as an
alternative justification to our plain meaning interpretation
and because Adams' arguments seem to include a contention that
the circuit court order violates not only Article I, Section 5
of the Wisconsin Constitution, but also § 102.29(1).
¶48 Article I, Section 5 of the Wisconsin Constitution
provides as follows:
The right of trial by jury shall remain
inviolate, and shall extend to all cases at law
without regard to the amount in controversy; but a
jury trial may be waived by the parties in all cases
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No. 2012AP580
in the manner prescribed by law. Provided, however,
that the legislature may, from time to time, by
statute provide that a valid verdict, in civil cases,
may be based on the votes of a specified number of the
jury, not less than five-sixths thereof.
¶49 This provision does not accord all claims a jury
trial. Historically, we have applied its protection only to
civil cases, whereas the jury protection in criminal cases flows
from Article 1, Section 7. Schweda, 303 Wis. 2d 353, ¶17; Dane
Cnty. v. McGrew, 2005 WI 130, ¶13, 285 Wis. 2d 519, 699 N.W.2d
890; Bennett v. State, 57 Wis. 69, 74, 14 N.W. 912 (1883). In
civil cases, we have interpreted Section 5 to mean that the
right to a jury trial is preserved for a statutory claim if (1)
the statute codified a cause of action that existed in 1848 when
Wisconsin's Constitution was adopted; and (2) the cause of
action was an action at law rather than in equity. Schweda, 303
Wis. 2d 353, ¶19; Vill. Food, 254 Wis. 2d 478, ¶16.
1. Village Food test
¶50 The test for whether the constitutional right to a
jury trial attaches to a statutory claim is set out in Village
Food:
[A] party has a constitutional right to have a
statutory claim tried to a jury when: (1) the cause
of action created by the statute existed, was known,
or recognized at common law at the time of the
adoption of the Wisconsin Constitution in 1848; and
(2) the action was regarded as at law in 1848.
Vill. Food, 254 Wis. 2d 478, ¶16.
¶51 While there need not be "specific identity" between
the statutory claim and a cause of action in 1848, the party
asserting a constitutional right to a jury trial must prove that
19
No. 2012AP580
the two claims differ only slightly. McGrew, 285 Wis. 2d 519,
¶21. Put another way, the cause of action in 1848 must be
"essentially [a] counterpart" to the statutory claim in order
for Section 5's jury trial protection to apply. Id. (quoting
Vill. Food, 254 Wis. 2d 478, ¶28) (alteration in McGrew).
¶52 Village Food describes by example the degree of
similarity between a statutory claim and a cause of action that
existed in 1848 that one must demonstrate when asserting a
constitutional right to a jury trial. The defendant in Village
Food was accused of violating certain provisions of the Unfair
Sales Act, Wis. Stat. § 100.30. Vill. Food, 254 Wis. 2d 478,
¶3. We began our discussion by identifying the purpose of
§ 100.30 as preventing "retailers, distributors, and wholesalers
of certain types of goods (namely alcohol, tobacco products,
and motor vehicle fuel) from selling their merchandise at an
artificially low price in order to attract patronage and thereby
cause harm to competing businesses and to consumers of those
products." Id., ¶18. We then examined the mechanism by which
the statute achieved this goal, a minimum markup formula. Id.,
¶19. We also considered the remedies available under the Unfair
Sales Act and the parties who could bring an action to enforce
the Act's provisions. Id., ¶¶20-21.
¶53 After examining the statutory claim, we proceeded to
evaluate the sources of law the defendant identified in support
of its argument that a cause of action counterpart existed in
1848. Based on the descriptions in Sir William Blackstone's
Commentaries on the Laws of England, we concluded that certain
20
No. 2012AP580
public trade offenses, "forestalling the market, regrating, and
engrossing" were "of the same 'nature'" as the case before us.
Id., ¶27. Because these public trade offenses were legal and
not equitable in nature in 1848, we concluded that the defendant
had a right to a jury trial secured by Article I, Section 5 of
the Wisconsin Constitution. Id., ¶33.
¶54 Our later decisions in McGrew and Schweda cautioned
litigants that vague similarities, such as an analogous class of
actions or shared "doctrinal roots," are not enough under
Village Food. McGrew, 285 Wis. 2d 519, ¶20; Schweda, 303
Wis. 2d 353, ¶34. In McGrew, we compared the speed limit in
Wis. Stat. § 346.57(4)(h) to the cause of action for common law
nuisance in 1848. We concluded that the statute was not the
counterpart of common law nuisance because "the class of actions
categorized as 'nuisances' [were] simply too broad to be
analogized to a speeding violation." McGrew, 285 Wis. 2d 519,
¶25. Similarly in Schweda, we concluded that nuisance law was
too sprawling a concept to constitute a counterpart to certain
environmental regulations. Schweda, 303 Wis. 2d 353, ¶¶32-34.
2. Village Food application
¶55 Within this legal context, we evaluate whether the
claim Adams asserts under Wis. Stat. § 102.29 accords him a
constitutional right to a jury trial. We begin by noting that
although Adams asserts a constitutional right to a jury trial
that precludes requiring him to settle a § 102.29(1) claim, he
fails to discuss the Village Food test. Rather than undertaking
the sort of analysis our decisions in Village Food, McGrew and
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No. 2012AP580
Schweda conclude is necessary, Adams states in a conclusory
fashion:
The right to seek compensation for the wrongs
committed by Northland and its employees is a right
going back to the early English common law. It was
initially referred to as "trespass on the case." The
Law of Torts, Dan B. Dobbs, West Group, 2000, Section
14, p. 26. It clearly was a right known and
recognized at common law at the time of the adoption
of the Wisconsin Constitution in 1848.
¶56 Adams' assertion does not constitute a meaningful
comparison of the claim created in Wis. Stat. § 102.29(1) to a
trespass on the case or to any other cause of action that
existed in 1848. Instead, stating his contention in this
fashion implies that it is sufficient to note that "[a]
negligence action for damages is an action at law and is
encompassed by the constitutional jury guaranty." Windsor
Square Homeowners Ass'n v. Citation Homes, 62 Cal. Rptr. 2d 818,
820 (Cal. Ct. App. 1997).5 Adopting Adams' contention, which is
unaccompanied by analysis, would "render the Village Food test a
nullity because 'present causes of action of all sorts assessed
under this test will . . . have to be compared [only] generally
. . . in order to invoke the constitutional protection to a
trial by jury.'" Schweda, 303 Wis. 2d 353, ¶40 (quoting Vill.
5
California, like Wisconsin and 46 other states, provides
for a state constitutional right to a jury trial in civil cases
using language "to the effect that the right shall 'remain
inviolate.'" State v. Schweda, 2007 WI 100, ¶89, 303 Wis. 2d
353, 736 N.W.2d 49 (Prosser, J., concurring in part, dissenting
in part).
22
No. 2012AP580
Food, 254 Wis. 2d 478, ¶46 (Wilcox, J., concurring in part,
dissenting in part)).
¶57 In regard to Adams' assertion, we note that under the
ancient common law, actions that we would categorize as
negligence claims were sometimes brought as trespass on the
case. Mueller v. Brunn, 105 Wis. 2d 171, 180, 313 N.W.2d 790
(1982) (explaining that "[t]respass on the case is the ancestor
of the present day action for negligence where problems of legal
and factual cause arise."). At common law, an injured party is
entitled to bring a claim against a tortfeasor for injuries that
party sustained due to the tortfeasor's negligence. See Nichols
v. Progressive N. Ins. Co., 2008 WI 20, ¶¶11-12, 308 Wis. 2d 17,
746 N.W.2d 220 (explaining the elements of common law negligence
and some of the common law rules for such a claim). A common
law negligence claim belongs to the injured party or his estate.
See Sampson v. Laskin, 66 Wis. 2d 318, 224 N.W.2d 594 (1975)
(which arose out of personal injuries to two men, one of whom
died, causing his estate to own the claim).
¶58 The claim created by Wis. Stat. § 102.29(1) is not the
counterpart of a common law claim maintained to compensate an
injured person for his injuries. Rather, by contrast, a
§ 102.29(1) claim furthers the comprehensive economic
regulations that worker's compensation has put in place. As we
have explained, "[w]orker's compensation laws are basically
economic regulations by which the legislature, as a matter of
public policy, has balanced competing societal interests."
Mulder, 95 Wis. 2d at 180. The remedies prescribed for a
23
No. 2012AP580
§ 102.29(1) claim wherein the injured employee shares the
statutory claim demonstrate part of those economic regulations.
This includes the worker's compensation payer's right to
reimbursement, even when the employer was at fault for the
employee's injury. Id. at 178-79.
¶59 There are numerous examples of the legislature's
comprehensive scheme in this third party statutory claim.
First, the third party claim is shared with the payer of
worker's compensation, Wis. Stat. § 102.29(1)(a); second, the
claim accords the person with whom the claim is shared an "equal
voice" in bringing the claim and in its prosecution, id.; third,
the parties must give notice to one another so both parties can
participate, id.; fourth, proceeds received from the claim are
apportioned according to a statutory formula wherein the injured
party has no right to all that is recovered, § 102.29(1)(b);
fifth, statutory apportionment of recovered damages may preclude
an injured party from being made whole, Threshermens, 217
Wis. 2d at 462; and sixth, disputes that arise during the
prosecution of the claim between the parties entitled to bring a
third party claim are resolved by the circuit court,
§ 102.29(1)(a); Bergren, 263 Wis. at 483 ("where two claimants
cannot agree as to the proper prosecution of a claim, then the
court can pass upon that dispute, without a jury trial").
¶60 Because an employee's right to sue a third party under
Wis. Stat. § 102.29(1) is part of a statutory scheme that
creates a statutory claim, abrogates common law remedies and
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No. 2012AP580
provides a required distribution scheme,6 the legislature was
well within its authority to define and limit the employee's
claim in such a way that an employee could be compelled to
accept settlement. See Threshermens, 217 Wis. 2d at 462
(explaining that the statutory scheme "supersedes the employee's
right to be 'made whole'"). Stated otherwise, § 102.29(1)
abrogates the employee's common law claim against third parties
and creates a statutory claim that differs so significantly from
a common law negligence claim that the statutory claim does not
have a counterpart at common law in 1848. Accordingly, we
refuse to interfere with § 102.29(1) by engrafting common-law
principles on the comprehensive choices the legislature made.
See Martinez v. Ashland Oil, Inc., 132 Wis. 2d 11, 16, 390
N.W.2d 72 (Ct. App. 1986) (concluding that the statutory
directive for the distribution of proceeds was part of an
overall statutory scheme that changed common law).
¶61 Having concluded that Adams does not have a
constitutional right to a jury trial under Article I, Section 5
of the Wisconsin Constitution for the Wis. Stat. § 102.29(1)
claim, we now turn to Adams' due process challenge.
6
For example, the employee is not a necessary party when
the payer of worker's compensation benefits makes a third party
tort claim based on the employee's injury pursuant to Wis. Stat.
§ 102.29(1), even when the payer seeks compensation for the
employee's pain and suffering. Threshermens Mut. Ins. Co. v.
Page, 217 Wis. 2d 451, 462, 480, 577 N.W.2d 335 (1998).
25
No. 2012AP580
E. Due Process
¶62 Adams argues that the circuit court's order violated
his procedural due process rights because he did not know why
LWMMIC accepted Cincinnati's settlement offer and the court did
not hold an evidentiary hearing at which he could present
witnesses.
¶63 We reject Adams' first assertion out of hand. In a
letter accompanying its motion to compel, of which Greenwald
received a copy, LWMMIC explained that the "liability problems
with [this] case," which had been thoroughly vetted at the
recent summary judgment motion, caused it to accept the offer.
LWMMIC "fear[ed] that a trial [would] result in a defense
verdict," and preferred the certain recovery the settlement
offer presented. At the motion hearing, LWMMIC reiterated that
it wished to accept settlement because the summary judgment
hearing "laid bare" many deficiencies in Adams' case. Adams
cannot reasonably contend that he did not know why LWMMIC wished
to accept settlement, and we now turn to the type of hearing
Adams believes is required.
¶64 Procedural due process under the Fourteenth Amendment
to the United States Constitution and Article I, Section 1 of
the Wisconsin Constitution protect against government actions
that deprive an individual of life, liberty, or property without
due process of the law. "In procedural due process claims, the
deprivation by state action of a constitutionally protected
interest in 'life, liberty, or property' is not in itself
unconstitutional; what is unconstitutional is the deprivation of
26
No. 2012AP580
such an interest without due process of law." Casteel v.
McCaughtry, 176 Wis. 2d 571, 579, 500 N.W.2d 277 (1993) (quoting
Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
¶65 We employ a two-step analysis to determine whether
there has been a violation of procedural due process. First, we
ask "whether there exists a[n] . . . interest which has been
interfered with by the State"; second, we examine "whether the
procedures attendant upon that deprivation were constitutionally
sufficient." Id. (quoting Kentucky Dep't of Corrections v.
Thompson, 490 U.S. 454, 460 (1989)).
¶66 The interest at stake in this case is Adams' statutory
claim against Northland and its insurer. Because it is Wis.
Stat. § 102.29(1), and not the constitution or the common law
that gives rise to and defines Adams' claim, his interest is
coterminous with the statutory claim. See Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972) (explaining
that property interests "are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law"). Adams' interest is the
right, together with LWMMIC, to prosecute a claim against a
third party, subject to judicial resolution of disputes on which
the two cannot agree.
¶67 Since Adams' interest is created by statute, and that
statute limits the right by providing a mechanism for resolving
disputes, Adams cannot complain that the resolution mechanism
violates due process. Judicial resolution of disputes is a
"built-in" feature of the claim Wis. Stat. § 102.29(1) creates,
27
No. 2012AP580
not a procedure for depriving Adams of a common law or
constitutional right. That the legislature selected judicial
resolution as the mechanism for balancing (and therefore
limiting) an employee's right to proceed against a third party,
rather than a statute of limitations or an assignment as other
states have done, is immaterial. See, e.g., Md. Code Ann., Lab.
& Empl. § 9-902 (West 2014) (employer has the exclusive right to
bring an action against a third party for two months after the
worker's compensation award, after which the employee may do
so); Okla. Stat. tit. 85, § 348 (2013) (an employee who elects
to take worker's compensation benefits assigns any claim against
a third party to the employer). Because Adams' interest was
subject to the limitation he challenges, he has not been
deprived of any constitutionally protected interest; therefore,
we do not reach the second step of our analysis. See Casteel,
176 Wis. 2d at 579.
F. Erroneous Exercise of Discretion
¶68 Adams' final argument is that the circuit court's
order constituted an erroneous exercise of discretion. Adams
faults the circuit court for: (1) not applying a legal
standard; (2) not holding an evidentiary hearing at which he
could have presented live witness testimony that would have
demonstrated the strength of his case; and (3) failing to use a
rational process to reach a reasonable conclusion.
¶69 We begin with Adams' contention regarding a legal
standard for compelling an employee to accept settlement. The
statute gives only the following directive to circuit courts
28
No. 2012AP580
faced with a motion to compel: The employee and compensation
insurer "[e]ach shall have an equal voice in the prosecution of
the claim, and any disputes arising shall be passed upon by the
court before whom the case is pending." Wis. Stat.
§ 102.29(1)(b). As the circuit court recognized, this does not
constitute "a great deal of guidance" from the legislature as to
"how [a] court should deal with these matters."
¶70 The legislature's decision not to provide a more
precise standard should not be held against the circuit court.
Yet by arguing that the circuit court did not apply a precise
legal standard, this is what Adams does.
¶71 Adams contends that a court cannot compel an employee
to accept settlement unless the settlement offer is in the best
interests of the employee. Adams appears to import this
standard from settlements involving minors that also require
court approval. See Wis. Stat. § 807.10. We reject such a
standard because unlike children, who "are the special objects
of the solicitude of the courts" and are "entitled to most
jealous care," employees occupy no such position under the law.
Jensen v. McPherson, 2002 WI App 298, ¶11, 258 Wis. 2d 962, 655
N.W.2d 487 (quoting Brandt v. Brandt, 161 Wis. 2d 784, 788-89,
468 N.W.2d 769 (Ct. App. 1991) (further citations omitted)).
¶72 Employees have the same right as a compensation
insurer to bring a claim under Wis. Stat. § 102.29(1) and an
equal voice in the prosecution thereof. Therefore, we conclude
that the standard a circuit court should employ when deciding
whether to compel a party to accept settlement is one that
29
No. 2012AP580
evaluates whether the settlement is reasonably fair to both
parties. Fairness, rather than a best interest standard, is
more in keeping with the language of the statute, which does not
favor either person entitled to bring the claim. It also echoes
the standard under federal law for approving a class action
settlement, which requires that the settlement offer be "fair,
reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). The
federal standard is persuasive because class actions raise
concerns similar to Adams' about compelling a litigant to accept
settlement. See generally Ortiz v. Fibreboard Corp., 527 U.S.
815, 845-46 (1999) ("the certification of a mandatory class
followed by settlement of its action for money damages
obviously implicates the Seventh Amendment jury trial rights of
absent class members"). We now turn to the process of
determining whether a settlement offer is fair.
¶73 Settlement decisions are the product of variables that
are difficult to quantify and compare. These include litigation
costs, settlement costs, stakes in the case, and likelihood of
success at trial. Richard A. Posner, An Economic Approach to
Legal Procedure and Judicial Administration, 2 J. Legal Stud.
399, 417-29 (1973). This case aptly demonstrates that
professional estimations of these variables can vary greatly.
The decision of a circuit court who has examined whether a
settlement offer is reasonably fair to both parties therefore
deserves wide latitude.
¶74 As a result of the briefing and thorough questioning
on defendants' summary judgment motion, the disputed issues in
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No. 2012AP580
the present case were well defined for the circuit court before
LWMMIC's motion to compel settlement. It appeared that Adams
was going to have to submit evidence beyond what he submitted in
opposition to the summary judgment motion in order to prove his
case. Evidence that could squarely establish a safe level of
tension for the springs, such as an industrial standard or
expert testimony, seemed to be absent. At least at the point of
the summary judgment motion, Adams appeared to rely on
conclusory legal statements from a memo Greenwald prepared for
Wozniak to prove negligence, rather than on evidence. While the
court did not grant defendants' summary judgment motion, we
agree with LWMMIC that the summary judgment motion exposed many
of the deficiencies in Adams' case.
¶75 The circuit court also had the benefit of additional
materials the parties submitted relating to the motion to compel
settlement. These showed that, at least in the opinion of
LWMMIC, problems with Adams' case had increased since the
summary judgment proceeding. For example, additional testing
had shown that the plow Adams was driving at the time of
accident did trip, even at low speeds. Defendants' neurosurgeon
was going to testify that Adams would not have sustained his
injuries had he been wearing a seat belt, and defendants were
arguing that the statutory limit on a reduction of damages for
not wearing a seat belt did not apply.
¶76 Adams' response to LWMMIC's motion was that the
circuit court was obligated to conduct an evidentiary hearing at
which Adams could "present, through documentary evidence and
31
No. 2012AP580
testimony of witnesses, that which he intended to prove [and]
that which he could prove, in order to demonstrate that this
proposed settlement was not in his best interests because his
case was much stronger than what [the circuit court] opined."
¶77 Adams' suggestion of a mini-trial is not only
unworkable, but it significantly lessens the value of the
proposed settlement, i.e., stopping the accruing costs of
litigation. "The very purpose of the compromise [by settlement]
is to avoid the delay and expense of such a trial." Parker v.
Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982) (quoting Young v.
Katz, 447 F.2d 431, 433 (5th Cir. 1971)). If a circuit court is
not presented with enough information about the case to conclude
that it would be fair to compel a party to accept settlement,
the solution is to deny the motion, not to pre-try the case.
See id. (quoting Young, 447 F.2d at 433) ("In determining the
adequacy and reasonableness of the proposed settlement, . . .
'the court does not try the case'").
¶78 We also agree with LWMMIC that to the extent Adams
"had some 'smoking gun' witness or testimony that he decided not
to use in defending the summary judgment motion, such an
argument runs contrary to the nature of contemporary pretrial
procedure, the aim of which is to prevent trial by ambush and
minimize surprises."
¶79 In addition to fleshing out liability disputes, the
circuit court ordered the parties to prepare a breakdown of the
distribution of any recovery under Wis. Stat. § 102.29(1).
Under the statutory scheme, Adams would receive one-third of any
32
No. 2012AP580
recovery remaining after deduction of reasonable costs of
collection, which could include the attorney fees for both
Adams' and LWMMIC's counsel, as well as his own attorney fees.
§ 102.29(1)(b)1. and (1)(c). LWMMIC would then be reimbursed up
to the $148,332 it had already paid in compensation, plus
amounts it "may be obligated to make in the future."
§ 102.29(1)(b)2. Any remainder, sometimes called a "cushion,"
would go to Adams. § 102.29(1)(b)3.
¶80 With the predicted distribution of recovery before
him, the circuit court was able to further evaluate the
settlement. That LWMMIC was willing to settle for roughly one-
third of what it had already paid in compensation, leaving it
unreimbursed for two-thirds of the amount it had already paid
and for all future payments, may have demonstrated the sincerity
of LWMMIC's concerns about Adams' case. That LWMMIC would be
entitled to reimbursement for past and future compensation
payments, which Greenwald acknowledged would be substantial
given the nature and extent of Adams' injuries, could also
inform the circuit court's assessment of the settlement offer.
If Adams' future medical expenses were so substantial that he
would be unlikely to receive any cushion, Adams' interest could
be characterized as primarily in one-third of the recovery after
deduction of costs.
¶81 Having defined the dispute, taken stock of the
parties' positions, and considered matters that impact the
fairness of the settlement offer to all plaintiffs, the circuit
33
No. 2012AP580
court granted the motion to compel, explaining its decision as
follows:
I believe based upon the evidence submitted in
support of and in opposition to the motion for summary
judgment that the risk of a finding of no liability in
this case exceeds the possibility of recovering
something beyond $200,000, and for that reason the
motion is granted.
We agree with the court of appeals that "[t]he circuit court's
decision reflected a logical interpretation of the facts
surrounding the settlement offer and consideration of the
appropriate factors bearing on the decision," not an erroneous
exercise of discretion. While the circuit court did not
specifically say that it evaluated the settlement to determine
whether it was reasonably fair to both parties, we are satisfied
that the court thoroughly considered matters that bear on that
standard. Accordingly, the decision of the court of appeals is
affirmed.
III. CONCLUSION
¶82 We conclude that a circuit court may compel an
employee to accept settlement of the claim the legislature
created in Wis. Stat. § 102.29(1). In such a claim, both the
employee and the worker's compensation insurer share the right
to sue third parties; the employee and the worker's compensation
insurer have an equal voice in the prosecution of the claim;
recovery from the claim is apportioned in the manner described
in § 102.29(1)(b); and the circuit court is empowered to resolve
any disputes arising between the employee and the worker's
34
No. 2012AP580
compensation insurer during the prosecution of their claim,
including those disputes involving settlement.
¶83 We also conclude that our interpretation of Wis. Stat.
§ 102.29(1) does not violate Adams' right to a jury trial
because the claim § 102.29(1) creates is not the counterpart of
a cause of action at law recognized at the time of the adoption
of the Wisconsin Constitution. We further conclude that the
circuit court's authority to compel an employee to accept
settlement does not violate procedural due process because
judicial resolution of disputes is part of the statutory claim.
Lastly, we conclude that the circuit court appropriately
exercised its discretion by defining the dispute, taking stock
of the relative positions of the parties and considering matters
that impacted the fairness of the settlement. Accordingly, we
affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
35
No. 2012AP580.awb
¶84 ANN WALSH BRADLEY, J. (dissenting). The lynchpin
of the majority's analysis lies in its unsupportable assertion
that the common law right of the employee to bring a tort action
against a negligent third party was abrogated by the enactment
of Wis. Stat. § 102.29. Majority op., ¶27. Such an assertion
unfortunately rewrites history, sub silencio overrules almost a
century of well-settled precedent, and ignores the words of the
statute.
¶85 I say "rewrites history," because an examination of
the history reveals that it is the common law right of an
employee to bring a tort action against the employer that was
alone abrogated by the 1911 Worker's Compensation Act——not the
common law right of an injured employee to bring a common law
tort action against a negligent third party.
¶86 As this court pointedly stated in 1927, an examination
of the legislative and statutory history of the worker's
compensation law "leave[s] no doubt that the legislature
intended to preserve the right to maintain an action in tort
against any person, other than the employer, who is responsible
for the acts causing injury to a workman." Cermak v. Milwaukee
Air Power Pump Co., 192 Wis. 44, 48, 211 N.W. 354 (1927).
¶87 I say "sub silencio overrules" because without even
acknowledging its existence, the majority apparently overrules
almost a century of our precedent that has clearly and
repeatedly provided that the common law right to maintain a tort
action against a negligent third party was unaffected by the
enactment of Wis. Stat. § 102.29.
1
No. 2012AP580.awb
¶88 In 1915, this court stated "the law [the Worker's
Compensation Act] does not attempt in any way to abridge the
remedies which an employee of one person may have at law against
a third person for a tort which such third person commits
against him." Smale v. Wrought Washer Mfg. Co., 160 Wis. 331,
334, 151 N.W. 803 (1915) (emphasis supplied); see also Severin
v. Luchinske, 271 Wis. 378, 383, 73 N.W.2d 477 (1955) ("That
remedy [a third party action] existed at common law and was
neither enlarged nor impaired by enactment of sec. 102.29.").1
¶89 Finally, if the history and a century of precedent
were not enough, the language of the statute expressly answers
whether the enactment of the Worker's Compensation Act abrogated
the right of the injured employee to bring a common law cause of
action in tort against a negligent third party. It did not.
¶90 The statute expressly provides that the bringing of a
worker's compensation claim "shall not affect the right of the
employee, the employee's personal representative, or other
person entitled to make claim or maintain an action in tort
against any other party for such injury or death . . . ." Wis.
Stat. § 102.29(1).
¶91 Under the majority's precarious analysis, it
determines that because the injured employee's common law right
to bring a tort action against a negligent third party has been
abrogated by the Worker's Compensation Act, there is no right to
a jury trial. Accordingly, it concludes that a court may compel
an employee to settle a claim, but offers no meaningful guidance
1
For additional cases see the discussion below.
2
No. 2012AP580.awb
on the standard or process to be used. Instead, it merely
cautions circuit courts to be "fair." A standard of "fairness"
provides no standard at all.
¶92 Contrary to the majority, I conclude that based on the
history of the worker's compensation law, longstanding
precedent, and the express language of the statute, the
employee's common law cause of action against a third party
tortfeasor was not abrogated by the Worker's Compensation Act.
Because an employee's common law cause of action against a third
party tortfeasor preexisted the Wisconsin Constitution and
continues to this day, the Wisconsin Constitution requires that
the right to a jury trial apply to such a claim. Accordingly,
I conclude that the court cannot compel settlement here, and I
respectfully dissent.
I
¶93 The majority's analysis of whether Adams has a right
to a jury trial is misguided from the beginning. It introduces
the issue as whether there is a right to a jury trial for a
statutory claim and then frames its analysis as whether the
claim created by Wis. Stat. § 102.29(1) is the counterpart of a
cause of action at law that was recognized at the time of the
adoption of the Wisconsin Constitution. Majority op., ¶¶5, 48,
57 (emphasis supplied). However, this is not the issue. The
issue is whether a litigant had a right to sue a third party
tortfeasor at common law for a work-related injury.
¶94 Article I, section 5 of the Wisconsin Constitution
protects the right to a trial by jury. It provides: "The right
3
No. 2012AP580.awb
of trial by jury shall remain inviolate, and shall extend to all
cases at law without regard to the amount in controversy." Wis.
Const. Art. I, §5. "This section clearly indicates that non-
statutory causes of action at law, where the jury trial was
guaranteed before the passage of the state constitution, would
continue to have a guaranteed right to a jury trial attached
even after the passage of the constitution." Vill. Food &
Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, ¶10, 254
Wis. 2d 478, 647 N.W.2d 177 (emphasis in original). Thus, if a
litigant files suit based on a common law cause of action, and
the right to a jury trial for that cause of action preceded the
passage of the state constitution, the litigant has a
constitutional right to a jury trial.
¶95 The common law right of an individual to seek redress
for an injury caused by another has existed for centuries. As
far back as 1768, Blackstone discussed personal actions "whereby
a man claims satisfaction in damages for some injury done to his
person or property." Sir William Blackstone, 3 Commentaries on
the Laws of England 117 (1768).2 Blackstone referred to such
actions as "trespass upon the case," and noted that such cases
were assessed by a jury. Id. at 122, 273-74. As the majority
acknowledges, "trespass on the case" is the ancestor of the
present day action for negligence. Majority op., ¶56 (quoting
Mueller v. Brunn, 105 Wis. 2d 171, 180, 313 N.W.2d 790 (1982)).
2
When ascertaining whether a cause of action existed in
1848, we often resort to Sir William Blackstone's Commentaries
on the Laws of England (1778). State v. Abbott Labs., 2012 WI
62, ¶34, 341 Wis. 2d 510, 816 N.W.2d 145.
4
No. 2012AP580.awb
¶96 Actions at common law, such as negligence, are not
easily abrogated by statute. It has long been established that
"[s]tatutes are not to be construed as changing the common law
unless the purpose to effect such change is clearly expressed
therein. To have such effect 'the language [of the statute]
must be clear, unambiguous and peremptory.'" Maxey v.
Redevelopment Authority of Racine, 94 Wis. 2d 375, 399, 288
N.W.2d 794 (1980) (quoting Wisconsin Bridge & Iron Co. v.
Industrial Comm., 233 Wis. 467, 474, 290 N.W. 199 (1940)).
¶97 Because the common law right of an employee to seek
redress from a third party tortfeasor is a right preceding the
Wisconsin Constitution, it cannot be abrogated absent clear,
unambiguous, peremptory statutory language. As discussed below,
there is nothing in the history of the Worker's Compensation
Act, this court's interpretation of it, or the Act's plain
language to indicate that it was intended to perempt the common
law right to maintain an action against a third party
tortfeasor.
A. History
¶98 Wisconsin has played a significant role in the history
of worker's compensation law in this country. On May 3, 1911,
Wisconsin became the first state in the nation to pass a broad,
constitutionally valid worker's compensation law. Borgnis v.
Falk Co., 147 Wis. 327, 133 N.W. 209 (1911); Joseph A. Ranney,
Trusting Nothing to Providence: A History of Wisconsin's Legal
System 344 (1999). In response, Employers Mutual Insurance
Company of Wausau was formed and established in a one-room
5
No. 2012AP580.awb
office above a cigar store in downtown Wausau. On September 2,
1911, one day after the law became effective, it issued the
nation's first constitutionally valid worker's compensation
policy. Soon thereafter worker's compensation legislation
became effective in nine other states.3
¶99 The Wisconsin Industrial Commission was created also
as a result of the passage of the worker's compensation
legislation. Its first chair was Charles Crownhart who
subsequently served as a justice on the Wisconsin Supreme Court.
No doubt his knowledge and experience illumined some of the
early worker's compensation decisions of this court——decisions
that are sub silencio being overruled by the majority's holding
today.
¶100 Prior to 1911 employees had the right to sue their
employers at common law but often lost because of common law
defenses. Robert Asher, "The 1911 Wisconsin Workmen's
Compensation Law: A Study in Conservative Labor Reform,"
Wisconsin Magazine of History, Vol. 57 at 125 (1973). There was
no recovery against an employer if it was determined that the
employee assumed the risk, the employee was negligent in any
way, or the injury occurred because of the negligence of a
fellow employee. However, if the employee was successful, there
was no limit on the amount the employee could recover. Id.;
3
Nevada, New Jersey, California, Washington, Kansas, New
Hampshire, Ohio, Illinois, and Massachusetts. Gregory Krohm,
Workers' Compensation: Wisconsin Pioneers the Nation's First
Constitutional Worker's Compensation Law (July 2011), available
at www.wipps.org/media/docs/2010_Krohm_History_WC-July-2011.doc.
6
No. 2012AP580.awb
Robert W. Ozanne, The Labor Movement in Wisconsin: A History
125-26 (1984).
¶101 The Worker's Compensation Act was passed as a
compromise between the employer's and employee's interests.
Employers lost their common law defenses, trading them for a no
fault system under which employees were obliged to accept a
limited and scheduled amount. Mulder v. Acme-Cleveland Corp.,
95 Wis. 2d 173, 180, 290 N.W.2d 276 (1980).
¶102 The abrogation of common law claims against employers
in the Worker's Compensation Act did not extend to common law
claims against third party tortfeasors. When it was first
enacted in 1911, the Worker's Compensation Act provided that
making a claim for compensation under the law would "act as an
assignment of any cause of action in tort which the employee or
his personal representative may have against any other party."
§1, ch. 50, Laws of 1911.
¶103 An amendment to the Worker's Compensation Act in 1913
provided that the making of a claim by an employee against a
third party "shall operate as a waiver of any claim for
compensation." §1, ch. 599, Laws of 1913. Although the law
allowed an employee to assign the employee's common law tort
claim and elect to either pursue a tort claim against a third
party or a claim for worker's compensation, it did not eliminate
the common law right to sue a third party tortfeasor.
¶104 Even though the common law right to sue a third party
remained, most employees chose the worker's compensation claim
and few employers exercised their assignment rights. Robert L.
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Millender, Expanding Employees' Remedies and Third Party
Actions, 17 Clev. St. L. Rev. 32, 33 (1968). This left the
third party tortfeasor with "a windfall." Id. Although there
was justification to remove tort liability from an employer
because the employer was liable regardless of fault under the
Worker's Compensation Act, the third party tortfeasor gave up
nothing and ended up with the equivalent of immunity due to
employers' reluctance to sue. Id.
¶105 Accordingly, in 1931 the Worker's Compensation Act was
amended to eliminate the requirement that an employee select
between a common law tort claim against a third party tortfeasor
and a worker's compensation claim. Drafting file for ch. 132,
Laws of 1931, Legislative Reference Bureau, Madison, Wis. ("The
third party liability is to be changed so that an injured
workman may in all cases claim compensation without surrendering
his right to sue a third party."). The new language provided:
The making of a claim for compensation against an
employer or compensation insurer for the injury or
death of an employe shall not affect the right of the
employe or his personal representative to make a claim
or maintain an action in tort against any other party
for such injury or death, but the employer or his
insurer shall be entitled to reasonable notice and an
opportunity to join in such action.
§2, ch. 132, Laws of 1931. Despite slight amendments to the law
since 1931, it continues to this day to protect the employee's
common law right to make a claim against a third party
tortfeasor. Wis. Stat. § 102.29(1).
B. Century of Precedent
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No. 2012AP580.awb
¶106 Consistent with its history, courts have repeatedly
recognized that the Worker's Compensation Act does not impair an
employee's common law right to maintain a tort action against a
third party tortfeasor. Almost one hundred years ago, the
Wisconsin Supreme Court succinctly expressed the law which
should be guiding the majority today: "The law does not attempt
in any way to abridge the remedies which an employee of one
person may have at law against a third person for a tort which
such third person commits against him." Smale, 160 Wis. at 334.
¶107 Likewise, in Cermak, 192 Wis. at 47, the court,
interpreting an early version of the statute, stated "[t]he
workmen's compensation act clearly evidences a legislative
intent that the payment of compensation by an employer shall not
relieve the one whose tortious act caused this injury from
liability therefor. This intent is shown by sec. 102.29,
Stats., which carefully preserves the right to maintain an
action in tort against such other person whose acts caused the
injury."4
¶108 The court explained that although receiving worker's
compensation benefits "operates as an assignment of any cause of
action in tort," that assignment "is merely for the purpose of
repaying to the employer the amount of the compensation paid the
injured employee." Id. at 47-48. Accordingly, it concluded
4
The dissent in Cermak also agreed with this
interpretation, stating "[t]here exists no doubt in my mind that
the workmen's compensation act preserves to the injured workman
. . . such cause of action as may exist at common law against a
third person." Cermak v. Milwaukee Air Power Pump Co., 192 Wis.
44, 51, 211 N.W. 354 (1927) (Rosenberry, J. dissenting).
9
No. 2012AP580.awb
that the provisions of the Worker's Compensation Act "leave no
doubt that the legislature intended to preserve the right to
maintain an action in tort against any person, other than the
employer, who is responsible for the acts causing injury to a
workman." Id. at 48.
¶109 After the 1931 amendment to the Worker's Compensation
Act, courts continued to recognize that it did not impair an
employee's common law right to maintain a tort action against a
third party tortfeasor:
The fact that sec. 102.29, Stats., appears in the
chapter entitled "Workmen's Compensation" does not
change the character of the action brought against a
third party, which as we have said, is one at law
founded in tort. There is nothing in the Workmen's
Compensation Law which discloses a legislative purpose
of creating a new remedy for an injury to an employee
caused by the negligent act of a third party. That
remedy existed at common law and was neither enlarged
nor impaired by enactment of sec. 102.29.
Severin, 271 Wis. at 383; see also Employers Mut. Liability Ins.
Co. v. De Bruin, 271 Wis. 412, 415, 73 N.W.2d 479 (1955) ("The
cause of action is one at common law; the fact that it is
recognized in a section of the Workmen's Compensation Law does
not change the fact that [the tortfeasor's] liability is based
upon his wrongful acts.").
¶110 The court expressed similar sentiments in McGonigle
v. Gryphan, 201 Wis. 269, 272, 229 N.W. 81 (1930) ("[I]t is
clear from a consideration of the whole act that it did not
affect rights of action which existed under the common law in
any cases except those in which the parties involved sustained
toward each other the relationship of employer and employee.").
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¶111 Wisconsin is not alone in interpreting its worker's
compensation law as preserving the common law right of an
employee to sue a third party tortfeasor. Other states have
likewise determined that their worker's compensation laws do not
abrogate the common law right to maintain an action against a
third party tortfeasor. See, e.g., Runcorn v. Shearer Lumber
Prods., 690 P.2d 324, 328 (Idaho 1984) ("the workmen's
compensation law does not disturb the injured employee's right
to sue a third party for 'legal liability to pay damages'");
County of San Diego v. Sanfax Corp., 568 P.2d 363, 367-68 (Cal.
1977) ("The workers compensation statutes governing employer and
employee actions against third parties do not define the
substantive law which determines whether an employee or an
employer will in fact recover. Instead, the substantive law
which governs . . . is usually the general tort law."); St.
Paul Fire & Marine Ins. Co. v. Wood, 416 S.W.2d 322, 327 (Ark.
1967) ("[The worker's compensation law] recognizes the
employee's common law tort action against third persons.");
Keener Oil & Gas Co. v. Bushong, 56 P.2d 819, 821 (Okla. 1936)
("There is nothing whatever in the [Worker's Compensation] act
under which it may be claimed there was a purpose or attempt to
limit, modify, or cancel the common-law liability of a third
party for his tortious injury of a workman.").
C. Language of the Statute
¶112 This precedent is consistent with the plain language
of the statute. It expressly provides that the making of a
claim for compensation against an employer shall not affect the
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No. 2012AP580.awb
right of an employee to make a claim or maintain an action in
tort against any other party. Wis. Stat. § 102.29(1)(a).
¶113 The statute states:
(a) The making of a claim for compensation against an
employer or compensation insurer for the injury
or death of an employee shall not affect the
right of the employee, the employee's personal
representative, or other person entitled to bring
action to make claim or maintain an action in
tort against any other party for such injury or
death, hereinafter referred to as a 3rd party.
. . .
(b) . . . Each shall have an equal voice in the
prosecution of the claim, and any disputes
arising shall be passed upon by the court before
whom the case is pending . . . .
Wis. Stat. § 102.29(1) (emphasis supplied).
¶114 Wisconsin Stat. § 102.29(1) should not be read as an
abrogation of the common law right to a jury trial. As
discussed above, statutes are not to be read as derogating the
common law unless the legislative purpose to do so is clearly
expressed in the language of the statute. Maxey, 94 Wis. 2d at
399. Such "legislative intent to change the common law must be
expressed 'beyond any reasonable doubt.'" Kranzush v. Badger
State Mut. Cas. Co., 103 Wis. 2d 56, 74, 307 N.W.2d 256 (1981)
(citing Grube v. Moths, 56 Wis. 2d 424, 437, 202 N.W.2d 261
(1972); Burke v. Milwaukee & Suburban Transport Corp., 39 Wis.
2d 682, 690, 159 N.W.2d 700 (1968)). Thus, to accomplish a
change in the common law, "the language [of the statute] must be
clear, unambiguous, and peremptory." Maxey, 94 Wis. 2d at 399.
¶115 Although the juxtaposition of the phrase "any disputes
arising shall be passed upon by the court," in subsection (1)(b)
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with the above emphasized language in subsection (1)(a) may give
rise to some uncertainty as to its meaning, it most certainly is
not "clear, unambiguous, and peremptory," in limiting the
longstanding right of an employee to a jury trial for injuries
caused by a third party tortfeasor. Wisconsin Stat.
§ 102.29(1)(b) may give a court the ability to pass upon other
disputes that arise during the prosecution of a case. However,
it does not——beyond a reasonable doubt——permit a court to compel
an employee to settle a claim against a third party tortfeasor,
thereby forcing surrender of the employee's right to a jury
trial. To the extent that Dalka v. Am. Family Mut. Ins. Co.,
2011 WI App 90, 334 Wis. 2d 686, 799 N.W.2d 923, suggested
otherwise, I conclude that it was in error.
¶116 Dalka involved an $8,500 settlement offer to the
plaintiff where there were consolidated cases with different
parties, multiple accidents, and disputes over the origin of the
injury. In its 12-paragraph decision, the court of appeals
determined that a court could force an employee to settle its
third party worker's compensation claims. It based its analysis
on Bergren v. Staples, 263 Wis. 477, 483-84, 57 N.W.2d 714
(1953). Dalka, 334 Wis. 2d 686, ¶10.
¶117 However, Bergren was decided in the context of an
employee who was trying to force an employer to settle. As
Bergren noted, unlike employees, employers do not have a common
law right to an employee's claim for negligence against a third
party. 263 Wis. at 482. The Dalka court failed to appreciate
this distinction. Consequently, it did not conduct a thorough
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analysis of the issue and is inconsistent with the history, case
law, and express language of the statute discussed above.
¶118 In sum, the history and longstanding precedent,
together with persuasive cases from other jurisdictions, as well
as the language of the Worker's Compensation Act lead to the
conclusion that an employee's common law cause of action against
a third party tortfeasor was not abrogated by the Worker's
Compensation Act. Because an employee's common law cause of
action against a third party tortfeasor preexisted the Wisconsin
Constitution and continues to this day, the Wisconsin
Constitution requires that the right to a jury trial apply to
such a claim. Thus, contrary to the majority, I conclude that
there is a right to a jury trial for a common law cause of
action brought by an employee against a third party tortfeasor.
II
¶119 The majority compounds its problematic analysis by
failing to give any meaningful guidance on what standards or
procedures should be applied in implementing its erroneous
conclusion.
¶120 Here, after the League of Wisconsin Municipalities
Mutual Insurance Company moved to compel settlement, Adams
requested the opportunity to present evidence in support of his
opposition to the motion. He specifically identified witnesses
he would present in support of his argument that the case had
more value than the settlement offer. The circuit court denied
this request and made its determination to compel settlement
14
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based on evidence previously entered in support of a summary
judgment motion.
¶121 Prior to its ruling, the circuit court made a clear
request for guidance on what standard to apply to determine
whether to grant a motion to compel a settlement. It noted the
worker's compensation statute did not indicate any procedure for
it to follow in deciding disputes between parties:
First of all, I want to say that the legislature
hasn't given a great deal of guidance with respect to
how the court should deal with these matters. The
legislature has directed that where there is a dispute
between two parties on how the case should be
conducted and whether offers of settlement should be
accepted, the statute imposes the duty to sort that
out upon the court. But there's no – there's nothing
that's been determined about how the court goes about
that.
There is a good reason, however, why no guidance is set forth in
the statute on what standards or procedures to employ when
considering a motion to compel an employee to settle. As
discussed above, such a motion which would deprive the employee
of the right to a jury trial would be an anathema to the
history, a century of precedent, and the express language of the
statute.
¶122 The circuit court also noted a similar absence of
guidance from the courts:
And the only case that deals with this, which is only
a few months ago, it was unfortunately a case where
the amount in dispute was only about $8,700 and where
the judge – trial court apparently dealt with it in a
15
No. 2012AP580.awb
rather cavalier fashion, and that doesn't give a great
deal of guidance.5
¶123 I agree with the circuit court that the legislation
and the caselaw offer little guidance on how to make these
determinations. The statute merely states that "any disputes
arising shall be passed upon by the court before whom the case
is pending." Wis. Stat. § 102.29(1). Likewise, the sole case
permitting a court to compel settlement noted only that the
circuit court had determined that settlement was in the
employee's best interest. Dalka, 334 Wis. 2d 686. It did not
elaborate on what standard a circuit court should apply in
making that decision and what evidence it should consider. Id.,
¶3.
¶124 The standard set forth by the majority today provides
even less guidance. It opines with scant explanation that
"fairness" is a better standard than "best interest." Majority
op., ¶72. Although the majority observes the three standards
employed by the federal court when approving class action
settlements (fairness, reasonableness, and adequacy), it chooses
just one without apparent rhyme or reason. Id. The majority
mandates that the standard a circuit court should employ when
deciding whether to compel a party to accept settlement is one
that evaluates whether the settlement is "fair." Id. Such a
solo standard provides no standard at all.
5
The case to which the circuit court was referring was
Dalka v. Am. Family Mut. Ins. Co., 2011 WI App 90, 334 Wis. 2d
686, 799 N.W.2d 923.
16
No. 2012AP580.awb
¶125 Likewise, the majority offers little guidance on what
process a circuit court is to use when making the determination
of whether to grant a motion to compel settlement. Rather than
stating what the procedure should be, the majority focuses on
the procedure suggested by Adams, stating that a "mini-trial" is
"unworkable." Id., ¶77.
¶126 The majority fails to acknowledge that in similar
circumstances, this court has adopted a mini-trial to assess the
value of a settlement. In Rimes v. State Farm Mut. Automobile
Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), the court
considered what procedure should be used to determine whether a
settlement between a plaintiff and a tortfeasor made the
plaintiff whole such that a subrogated insurer could share in
the recovery. It concluded that a mini-trial conducted by the
circuit court was appropriate. Id. at 276-77. Since then,
Rimes hearings have become the norm for determining whether a
plaintiff has been made whole by a settlement. Schulte v.
Frazin, 176 Wis. 2d 622, 629, 500 N.W.2d 305 (1993).
¶127 The two cases cited by the majority show that
evidentiary hearings are also used by federal district courts in
determining whether to approve class action settlements under
Fed. Rule Civ. Pro. 23(e).6 See Young v. Katz, 447 F.2d 431,
6
Federal Rule Civ. Pro. 23(e) provides:
The claims, issues, or defenses of a certified class
may be settled, voluntarily dismissed, or compromised
only with the court's approval. The following
procedures apply to a proposed settlement, voluntary
dismissal, or compromise:
. . .
17
No. 2012AP580.awb
434-35 (5th Cir. 1971) (noting that the plaintiffs presented
witness testimony and that the evidence presented by the
objectors raised nothing of substance to contradict it); Parker
v. Anderson, 667 F.2d 1204, 1210 (5th Cir. 1982) (noting the
objectors' failure to introduce any evidence at the settlement
hearing). The majority does not explain why Wisconsin circuit
courts are unable to manage the same procedure as well as the
federal courts.
¶128 Although the contours of the procedure the majority
sets forth for the circuit courts are unclear, the inadequacy of
its loose guidelines are illustrated by their application in
this case. Here, the majority determines that it was
permissible for the circuit court to compel settlement based
solely on the evidence already before it. Adams' claim was
terminated without him being able to present evidence in
opposition to the motion to compel settlement. Such a procedure
calls into question whether the court had an adequate basis for
determining that the settlement was fair and raises due process
concerns.
¶129 The majority is obligated to provide the circuit court
and litigants with some direction on how a circuit court is to
make a determination to compel settlement. Its standard of
"fairness" is no standard at all. Absent any indication of what
evidence the court is to consider and how that evidence is to
(2) If the proposal would bind class members, the
court may approve it only after a hearing and on
finding that it is fair, reasonable, and adequate.
18
No. 2012AP580.awb
get before the court, the majority opinion shirks its
responsibility.
III
¶130 In sum, the majority's approach to the right to a
jury trial is misguided as it overlooks history, sub silencio
overrules decades of cases, and ignores the words of the statute
by assuming that an employee's right to pursue a cause of action
against a third party tortfeasor comes from Wis. Stat.
§ 102.29(1), and not the common law. Under its precarious
analysis the majority determines there is no right to a jury
trial, and concludes that a circuit court may compel an employee
to settle its claims.
¶131 Contrary to the majority, I conclude that the
employee's common law cause of action against a third party
tortfeasor was not abrogated by the Worker's Compensation Act.
Because an employee's common law cause of action against a third
party tortfeasor preexisted the Wisconsin Constitution and
continues to this day, the Wisconsin Constitution requires that
the right to a jury trial apply to such a claim. Accordingly,
I conclude that the court cannot compel settlement here, and I
respectfully dissent.
¶132 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2012AP580.awb
1