American Medical Transport of Wisconsin, Inc. v. Curtis-Universal, Inc.
| Decision Date | 21 December 1988 |
| Docket Number | INC,CURTIS-UNIVERSA,No. 88-0257,88-0257 |
| Citation | 148 Wis.2d 294,435 N.W.2d 286 |
| Parties | , 1989-1 Trade Cases P 68,410 AMERICAN MEDICAL TRANSPORT OF WISCONSIN, INC., Lifeline Ambulance Service, Inc., and Cross Ambulance Service Inc., Plaintiffs-Appellants, d v., Paratech Ambulance Service, Inc., Meda-Care Ambulance Service, Inc., R.A. Zehetner & Associates, Inc., d/b/a Bell Ambulance and City of Milwaukee, Defendants-Respondents. d |
| Court | Wisconsin Court of Appeals |
Quarles & Brady by Darryl S. Bell of Milwaukee, on the briefs, for plaintiffs-appellants.
O'Neil, Cannon & Hollman, S.C. by Randall L. Nash, Milwaukee, on the briefs, for defendants-respondents, Curtis-Universal, Inc.
Robert L. Hersh, Milwaukee, on the briefs, for defendant-respondent, Paratech Ambulance Service, Inc.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
This case concerns the City of Milwaukee's implementation of an emergency medical service system under Milwaukee Ordinance sec. 75-15, file # 83-1503 (1983). Plaintiffs claim that the emergency medical service system violates sec. 133.03(1) and (2), Stats., Wisconsin's analogue to sections one and two of the Sherman Antitrust Act (15 U.S.C. secs. 1 and 2). Additionally, they claim that an advertising sticker concerning the system, which was circulated by all of the defendants except Bell Ambulance, was misleading and violative of sec. 100.18, Stats.
The trial court dismissed the complaint. First, it granted Milwaukee's motion to dismiss the antitrust claims against it, holding that the city was, under the circumstances here, immune from antitrust liability. Second, it granted the defendant ambulance companies' motions to dismiss the antitrust claim against them, holding that they were also immune from antitrust liability. Third, it dismissed the claim involving the allegedly misleading advertisement holding that it was "a true statement."
Milwaukee's emergency medical services system, as authorized by Milwaukee Ordinance sec. 75-15, has a number of key features:
A central dispatch system for the receipt of calls for emergency medical services;
Fire department emergency personnel response to life-threatening emergencies;
Private ambulance response to non-life-threatening emergencies;
Certification of ambulance companies participating in the system;
Uniform fees for ambulance companies participating in the system;
Separate service areas in the city;
Assignment of a certified ambulance company to be the primary provider for a service area;
Assignment of other certified ambulance companies to be back-up providers for a service area;
An Ambulance Service Board to advise the common council's license committee concerning the certification of ambulance companies, the mapping of service areas, and the assignment of ambulance companies to those service areas.
As authorized by the ordinance, Milwaukee was divided into four service areas and a certified ambulance company was assigned as the primary provider for each service area.
The defendant ambulance companies are all certified providers who have been assigned primary responsibility for a service area. The plaintiffs are certified ambulance companies who have been designated as secondary or backup providers. Calls for emergency service made to a central fire department dispatcher are either routed to fire department personnel, if the situation is life-threatening, or to private ambulance companies, if the situation is not life-threatening. The private ambulances are dispatched according to service area: primary providers are called first; if they are busy, a secondary provider is called. As noted, plaintiffs claim that the emergency medical services system under Milwaukee Ordinance sec. 75-15 violates sec. 133.03(1) and (2), Stats.
Plaintiffs seek redress under sec. 133.03(1) and (2), Stats. These provisions were "intended as a reenactment of the first two sections of the federal Sherman Antitrust Act of 1890, 15 U.S.C. secs. 1 and 2, with application to intrastate as distinguished from interstate transactions" and the "question of what acts constitute a combination or conspiracy in restraint of trade is controlled by federal court decisions under the Sherman Act." Grams v. Boss, 97 Wis.2d 332, 346, 294 N.W.2d 473, 480 (1980). Plaintiffs' antitrust claims were dismissed on the pleadings. We may not affirm that dismissal unless, looking at the allegations in a light most favorable to the plaintiffs, " 'it appears to a certainty that no relief can be granted under any set of facts that [they] can prove in support of [their] allegations.' " Id. at 352, 294 N.W.2d at 483 (quoting Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 732, 275 N.W.2d 660, 664 [1979] ).
Plaintiffs' first cause of action alleges that Milwaukee and the defendant ambulance companies "contracted, combined or conspired to restrain trade in ambulance services in the City of Milwaukee." It is an attempt to state a claim under sec. 133.03(1), Stats., which provides:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is illegal. Every person who makes any contract or engages in any combination or conspiracy in restraint of trade or commerce may be fined not more than $100,000 if a corporation, or, if any other person, $50,000, or be imprisoned for not more than 5 years, or both.
There are two elements to a claim under section 1 of the Sherman Antitrust Act: (1) An agreement among two or more persons or entities (2) that unreasonably restrains competition. Almeda Mall, Inc. v. Houston Lighting & Power Co., 615 F.2d 343, 350 (5th Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980).
Plaintiffs' second cause of action is directed against Milwaukee only and alleges that it has monopolized the "emergency ambulance services market" in the city. It is an attempt to state a claim under sec. 133.03(2), Stats., which provides:
Every person who monopolizes, or attempts to monopolize, or combines or conspires with any other person or persons to monopolize any part of trade or commerce may be fined not more than $100,000 if a corporation, or, if any other person, $50,000, or be imprisoned for not more than 5 years, or both.
There are two elements to a claim under section 2 of the Sherman Antitrust Act: (1) The defendant must have monopoly power in the relevant market and (2) The defendant's acquisition or maintenance of that power must not be the result of "growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-571, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966).
Municipalities, like Milwaukee, are "persons" for the purposes of antitrust liability under secs. 133.03(1) & (2), Stats. Sec. 133.02(3), Stats.; Town of Hallie v. City of Chippewa Falls, 105 Wis.2d 533, 537, 314 N.W.2d 321, 324 (1982). Nevertheless, municipalities enjoy freedom from liability for acts that would otherwise violate sec. 133.03(1) and (2), Stats., if "the legislature intended to allow municipalities to undertake such actions." Id. at 539, 314 N.W.2d at 324. Application of this standard requires "an analysis of the home rule powers of cities, the type of conduct undertaken by a city in a particular instance, and the general statutory framework set up by the legislature in the particular field." 1 Ibid Article XI, sec. 3(1) of the Wisconsin Constitution grants cities the power to "determine their local affairs" with the "method of such determination ... prescribed by the legislature." The legislature has given cities broad berth:
Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.
Sec. 62.11(5), Stats. (emphasis added). 2 This provision was designed to give cities all powers not specifically denied them by either the constitution or statute. Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis.2d 518, 532, 271 N.W.2d 69, 75 (1978).
A city's home rule powers are subject to limitations in the constitution and "to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village." Wis. Const. art. XI, sec. 3(1). Thus, a city's home rule powers must give way "when they conflict with matters of state-wide concern." Town of Hallie, 105 Wis.2d at 540, 314 N.W.2d at 325. Although Wisconsin's antitrust statutes are matters of state-wide concern, "this fact alone does not prevent a city from exercising its general home rule powers to provide for an area of legitimate local concern." Ibid. The home rule powers will thus not immunize a city's actions from antitrust liability when what the city has done impinges upon, and is in conflict with, matters of state-wide concern. Ibid.
Section 75-15 of the Milwaukee Code of Ordinances establishes a comprehensive program to provide emergency ambulance service for the city. Milwaukee's regulation of ambulance services within its borders clearly involves a matter of local, not state-wide, concern. Cf. Wisconsin's Envtl. Decade, 85 Wis.2d at 530, 271 N.W.2d at 74.
Although a municipality's actions might, on the surface, be sufficiently within an area of local concern to be immune from antitrust regulation, ...
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