Jenson v. Employers Mut. Cas. Co.

• Decision Date: 17 April 1991
• Docket Number: No. 89-0961,89-0961
• Citation: 161 Wis.2d 253,468 N.W.2d 1
• Parties: , 6 IER Cases 674 Jan K. JENSON, Plaintiff-Appellant-Petitioner, d v. EMPLOYERS MUTUAL CASUALTY COMPANY, a foreign insurance corporation, Wausau Underwriters Insurance Company, a domestic insurance corporation, Tower Insurance Company, Inc., a domestic insurance corporation, and Guy Little, Sr., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 1

468 N.W.2d 1

161 Wis.2d 253, 6 IER Cases 674

Jan K. JENSON, Plaintiff-Appellant-Petitioner, ^d v. EMPLOYERS MUTUAL CASUALTY COMPANY, a foreign insurance corporation, Wausau Underwriters Insurance Company, a domestic insurance corporation, Tower Insurance Company Inc., a domestic insurance corporation, and Guy Little, Sr. Defendants-Respondents.

No. 89-0961.

Supreme Court of Wisconsin.

Argued Jan. 3, 1991.

Decided April 17, 1991.

Daniel Snyder (argued), and De Bardeleben & Associates (on briefs), Park Falls, for plaintiff-appellant-petitioner.

Stephen R. Bick (on brief), Theodore D. Salzer (argued), and Witkin, Till & Bick, Ltd., Superior, for defendant-respondent, Wausau Underwriters.

Chris A. Gramstrup (argued), and Gee, Hendricks, Knudson & Gee, S.C. (on brief), Superior, for defendant-respondent, Employers Mut., Tower Ins. and Guy Little, Sr.

HEFFERNAN, Chief Justice.

This is a review of a published court of appeals decision, 154 Wis.2d 313, 453 N.W.2d 165 (1990), which affirmed the summary judgment of the circuit court for Douglas county, Joseph A. McDonald, Judge, which dismissed the plaintiff's complaint for intentional infliction of emotional distress because plaintiff's remedy was exclusively under the Workers Compensation Act (hereinafter WCA). We affirm the court of appeals.

The plaintiff, Jan K. Jenson, became the clerk-treasurer of the Village of Solon Springs in 1978 by appointment of the village board. Insofar as this record on summary judgment and depositions of Jenson, the plaintiff, and Little, the defendant, indicate, no events of significance to this litigation occurred until April of 1985, when Guy Little, Sr., was elected president and trustee of the village board.

Immediately after the commencement of Little's term in 1985 as president, the plaintiff alleges Little commenced a course of conduct that inflicted emotional distress upon her which led to her alleged disability and the commencement of the lawsuit.

In her deposition, Jenson states that, prior to Little's becoming village president, she had no contact with him except for seeing him on the street or when he came into her office. She characterized his attitude on the latter occasion as "rude and demanding." She also stated that her friends reported, after Little's election, that Little was going "to run me out of office." She was told that Little's reason for running her out of office was "that my boyfriend had formerly gone with his daughter and that he had never accepted my boyfriend breaking up with his daughter in spite of the fact that it was done some time before I met my boyfriend."

Upon assuming office, Little immediately proposed that Jenson's work hours be cut in half--this despite the fact she had an existing contract signed by the prior village president and approved by the village board. The depositions reveal, without dispute, that Little told the village board that Jenson was doing a bad job and that he attacked her work performance at a public village board meeting. He accused her of being dishonest and a liar. Jenson's deposition also asserts that these accusations were made at the board meeting, before the board meeting, and immediately afterwards, and that Little was talking about her in respect to his relationship with her in his capacity as village president. She acknowledged that she had no relationship with Little except in the job situation, and that the altercation was about her job performance and hours of work. While Jenson clearly stated that Little "slandered" her on other than work occasions or at village board meetings, the accusations were all work related.

Although Jenson received the support of the village board, she asserts the conduct of Little caused her physical and emotional problems, which on one occasion required her to take a six-week leave of absence.

Action was brought in July of 1986 against Little for the intentional infliction of emotional distress. Allegation 8 of the complaint stated:

8. Since the 19th day of April, 1985, the defendant Guy Little Sr. with intent to cause the plaintiff emotional distress, has engaged in gross, extreme, and outrageous conduct in complete denial of the plaintiff's dignity as a person, all without privilege so to do, including, among other acts, the unjustified and unjustifiable issuance of threats of the termination of the plaintiff as such clerk-treasurer, public issuance in an oppressively loud and overbearing voice of false accusations that the plaintiff is a liar, berating the plaintiff in a loud and intimidating voice, in public, and with violent gestures for plaintiff's refusal to follow unlawful and wrongful orders issued by the defendant Guy Little Sr. falsely impugning the integrity of the plaintiff in a loud, overbearing, demeaning, and vituperative manner in the presence and hearing of other employees of the said village and members of the public, the public issuance of false and degrading statements to the effect that the plaintiff had authored and submitted false financial reports with respect to the affairs of the said village, issuance of false public statements to the effect that the plaintiff, in her capacity as such clerk-treasurer, is incompetent and dishonest, unjustified and deliberate refusal to cooperate with the plaintiff in the conduct of the business of the said village thereby subjecting the plaintiff to unwarranted public criticism and opprobrium, and unjustified denial or withholding of compensation and other benefits and things of value to which the plaintiff is entitled by virtue and under the terms of her contract of employment as such clerk-treasurer of said village.

Jenson not only took sick leave, which she claims was made necessary by the conduct of Little, but also asserted periods of malaise and depression. Eventually she resigned in December of 1986, when the village board concluded that the next clerk-treasurer would be elected. Jenson would not have been eligible because she was not a resident of Solon Springs.

The action was brought not only against Little but against three insurance companies which insured Little and the Village of Solon Springs in the event of covered misconduct.

Originally, defendants moved to dismiss for failure to state a claim upon which relief could be granted. This motion was denied.

In October of 1988, the defendants filed a motion for summary judgment dismissing the complaint on the grounds that the plaintiff's exclusive remedy is under the WCA, the claim having been brought against a co-employee, and that there were no genuine issues of material fact. After several hearings, Judge Joseph A. McDonald concluded that the action was exclusively cognizable under the WCA and that Little and Jenson were co-employees of the Village of Solon Springs. Judge McDonald also held that the exception from the exclusivity provision contained in sec. 102.03(2), Stats., where the injury results from an assault intended to cause "bodily harm" was inapplicable. Summary judgment was entered dismissing the complaint of Jan Jenson.

On appeal to the court of appeals by Jenson, that court affirmed. Contrary to the assertions of the plaintiff, the court of appeals held that intentional injuries are within the purview of the WCA, that emotional injuries are specifically covered, and that the assault exemption from the exclusive remedy afforded by sec. 102.03(2), Stats., was inapplicable under the facts of this case. ¹

We affirm the court of appeals in each of its conclusions.

The basic question is whether the claim of Jan Jenson is cognizable under the provisions of the WCA. If it is, then, under the provisions of sec. 102.03(2), Stats., workers compensation "shall be the exclusive remedy against the employer, any other employe of the same employer...." ²

The plaintiff makes various arguments that the claim is not one where there is the right to recovery under the WCA and, therefore, her common law action against Little may proceed.

It is asserted by Jenson that the action of Guy Little was intentional and only unintentional conduct gives rise to worker compensation liability; that the type of injury--mental distress--allegedly sustained is not of a kind that is compensable under the WCA; that she was not performing services "growing out of and incidental to his or her employment," as required by sec. 102.03(1)(c)1 of the WCA; that the "accident" causing injury did not arise out of the employment, as required by sec. 102.03(1)(e) of the WCA; and that Little's conduct constituted an assault intended to cause bodily harm. ³

This matter comes before this court on summary judgment, and we apply the same standard of review as would be applied ab initio by the circuit court. As pointed out in Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987), a two-step methodology is appropriate: First, whether a claim has been stated upon which relief can be granted and, second, whether there is a genuine issue as to any material fact that must be determined. In the instant case, there appears to be no doubt that, in the absence of the exclusivity remedy of the WCA, a cause of action is stated against Guy Little. The question, as we view it, is one of law in light of there being no material issues of fact to be determined, bearing in mind that the only question is whether the action must be dismissed because it has been statutorily preempted by the WCA. We obviously do not make the findings of fact that would be necessary to support an award of workers compensation. We affirm the trial court and the court of appeals on factual matters only because reasonable persons could not differ on the conclusion that material facts are not at issue or in dispute.

It should be emphasized that it is Jenson who asserts a common law claim for the obvious reason that recovery under the WCA is only in a scheduled amount while the common law claim permits whatever recovery a jury...