Brown v. Muskego Nor. Sch. Dist. Grp. Health Plan, Appeal No. 2018AP1799

CourtCourt of Appeals of Wisconsin
Writing for the CourtREILLY, P.J.
Citation936 N.W.2d 418 (Table),2019 WI App 65,389 Wis.2d 377
Parties William C. BROWN and Beth A. Brown, Plaintiffs-Counter Defendants-Appellants, v. MUSKEGO NORWAY SCHOOL DISTRICT GROUP HEALTH PLAN, Defendant-Counter Claimant-Respondent.
Docket NumberAppeal No. 2018AP1799
Decision Date16 October 2019

389 Wis.2d 377
936 N.W.2d 418 (Table)
2019 WI App 65

William C. BROWN and Beth A. Brown, Plaintiffs-Counter Defendants-Appellants,

Appeal No. 2018AP1799

Court of Appeals of Wisconsin.

DATED AND FILED October 16, 2019


¶1 William C. Brown was injured in a motorcycle accident. Brown declined worker’s compensation coverage and wanted coverage provided by his own health insurance policy. The circuit court found that Brown was in the course of his employment when he was injured and further found that Brown’s health insurance policy expressly excluded coverage as benefits were available to Brown under the worker’s compensation law. We affirm.

¶2 On November 4, 2015, Brown suffered significant injuries in a serious motorcycle accident. At the time, Brown was a salaried employee of Gardner Pet Group, which had two plant locations in Wisconsin: one in Juneau and one in West Bend. Brown’s office was located at the West Bend location, but he was often required at both locations. The morning of the accident, Brown attended a meeting at the Juneau plant and remained at the Juneau plant until approximately 2:00 p.m.

¶3 The accident occurred at approximately 2:47 p.m. as Brown was traveling east on Highway 33, which is the most direct route to his office at the West Bend plant. Brown claims that he left the Juneau plant to enjoy a motorcycle ride on a beautiful day and to have lunch as he had already put in an eight-hour day. He explained that he "just started meandering" on the roads and at some point he ended up back on Highway 33. When asked whether he was planning on going back to his office, Brown responded, "I don't know to be honest with you. I don't know if I was.... The concept would be let’s just go for a ride."

¶4 Five days after the accident, Gardner Pet Group submitted a claim to the Wisconsin Department of Workforce Development’s Worker’s Compensation Division, indicating that Brown was "driving from one work location to another" when the accident occurred. Thereafter, Travelers Property Casualty Company of America (Travelers)—Gardner Pet Group’s worker’s compensation carrier—opened a file and began its claims investigation. Travelers completed its investigation on November 12, 2015, and determined that Brown’s claim was compensable and that "[t]he accident arose out of and in the course of [Brown’s] employment." When Brown discovered the claim had been filed, he refused the worker’s compensation checks he received from Travelers and instructed Gardner Pet Group to withdraw the claim,1 arguing that he was not working at the time of his accident.

¶5 Muskego Norway School District Group Health Plan (the Plan)—Brown’s health insurer—also investigated whether it owed coverage and sent a standard questionnaire to Brown, which included the question, "Was treatment required as the result of a work related Injury or Illness," and the box was marked, "No." The form was signed on February 11, 2016, by Brown’s attorney. Relying on the questionnaire, the Plan paid $482,099.61 for Brown’s medical care and treatment as a result of the accident.

¶6 Brown filed this action on February 22, 2016, against the driver and insurer of the vehicle that hit him, alleging negligence.2 The amended complaint also named the Plan as a subrogated party for the health care payments that it made and Travelers in the event it made payments. On July 17, 2017, the Plan filed an amended answer and counterclaim seeking a declaration under WIS. STAT. § 806.04 (2017-18)3 that the Plan was not obligated to pay any claims arising from the accident pursuant to the Plan language as Brown was covered by worker’s compensation benefits. The circuit court agreed and granted the Plan’s motion for summary judgment and entered a judgment in the amount of $514,551.28, which included costs and interest against Brown in favor of the Plan. Brown appeals from both the order granting summary judgment as well as the judgment awarding interest and costs.


¶7 We review a circuit court’s grant of summary judgment utilizing the same methodology as the circuit court. Green Spring Farms v. Kersten , 136 Wis. 2d 304, 314-16, 401 N.W.2d 816 (1987). "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc. , 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995) ; see also WIS. STAT. § 802.08(2). Summary judgment presents a question of law that we review de novo. M & I First Nat'l Bank , 195 Wis. 2d at 497. Interpretation of an insurance contract is a question of law we review de novo. Varda v. Acuity , 2005 WI App 167, ¶7, 284 Wis. 2d 552, 702 N.W.2d 65.

Plan Language

¶8 We begin with the plain language of the policy. Section 6 of the Plan indicates that "[t]he Plan does not provide benefits"

[f]or any ... injury arising out of and in the course of employment if benefits are available under any Workers’ Compensation Act or other similar law.... This exclusion also applies whether or not you claim the benefits or compensation. It also applies whether or not you recover from any third party.

Further, under general provisions, the Plan provides that

All money paid or owed by Workers’ Compensation for services provided to a Member shall be paid back by, or on behalf of, the Member to the Plan if the Plan has made or makes payment for the services received.

Similarly, under the "Right of Recovery," the Plan provides: "Whenever payment has been made in error, the Plan will have the right to recover such payment from you ...." To determine whether the Plan’s exclusion applies, we apply Wisconsin’s worker’s compensation law to the facts of this case.

Worker’s Compensation Law: "Traveling Employees"

¶9 WISCONSIN STAT. § 102.03(1)(c) of the Worker’s Compensation Act provides that where an employee sustains an injury, an employer may only be held liable for injuries that occur while "the employee is performing service growing out of and incidental to his or her employment." Specifically, § 102.03(1)(f) creates a presumption of workers compensation coverage for traveling employees, providing in pertinent part that "[l]iability under this chapter shall exist against any employer only where the following conditions concur:"

(f) Every employee whose employment requires the employee to travel shall be deemed to be performing service growing out of and incidental to the employee’s employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee’s employment.

(Emphasis added.)

¶10 A deviation for a personal purpose that is reasonably necessary for living or incidental thereto is known as the "personal comfort doctrine." Recognized first in Milwaukee Western Fuel Co. v. Industrial Commission , 159 Wis. 635, 150 N.W. 998 (1915), our supreme court explained that the personal comfort doctrine was devised

to cover the situation where an employee is injured while taking a brief pause from his labors to minister to the various necessities of life. Although technically the employee is performing no services for his employer in the sense that his actions do not contribute directly to the employer’s profits, compensation is justified on the rationale that the employer does receive indirect benefits in the form of better work from a happy and rested workman, and on the theory that such a minor deviation does not take the employee out of his employment.

Marmolejo v. DILHR , 92 Wis. 2d 674, 678, 285 N.W.2d 650 (1979) (quoting Comment, Workmen’s Compensation: The Personal Comfort Doctrine , 1960 WIS. L. REV. 91, 91). The court further explained that "[e]mployees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred," or if "the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment." Marmolejo , 92 Wis. 2d at 680 (citation omitted).

¶11 Our supreme court addressed the personal comfort doctrine in Dibble v. DILHR , 40 Wis. 2d 341, 346, 161 N.W.2d 913 (1968), and concluded that in order for the presumption of coverage for a traveling employee to not apply, "there must be a finding of two essential facts .... There must be (1) a deviation by the employee from his business trip, and (2) such deviation must be for a personal purpose not reasonably necessary for living or incidental thereto."

¶12 Brown first argues that WIS. STAT. § 102.03(1)(f) is inapplicable to him as it is known as the "traveling salesman" statute and applies only to "employees who are living and working away from home." We disagree as the statute contains no such limitation, and we conclude that § 102.03(1)(f) is not limited to employees living and working away from home.4 The statute applies to "[e]very employee whose employment requires the employee to travel," and Brown was required to...

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