Lentz v. Young

• Decision Date: 02 May 1995
• Docket Number: No. 94-3335,94-3335
• Citation: 195 Wis.2d 457,536 N.W.2d 451
• Parties: Connie L. LENTZ and Thomas J. Lentz, her husband, Plaintiffs-Appellants, v. David N. YOUNG, Defendant-Respondent. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 451

536 N.W.2d 451

195 Wis.2d 457

Connie L. LENTZ and Thomas J. Lentz, her husband Plaintiffs-Appellants, v. David N. YOUNG, Defendant-Respondent. ^d

No. 94-3335.

Court of Appeals of Wisconsin.

Oral Argument May 2, 1995.

Opinion Released June 20, 1995.

Opinion Filed June 20, 1995.

For the plaintiffs-appellants there were briefs and oral argument by Mary Taylor Lokensgard of Robinson, Robinson, Peterson, Berk & Cross of Appleton.

For the defendant-respondent there was a brief and oral argument by Thomas W. Johnson of Werner, Lindgren & Johnson, S.C. of New London.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Connie and Tom Lentz (Lentz) appeal a summary judgment dismissing their tort claims against Lentz's employer, David Young. Lentz contends that Young waived the defense of exclusivity under the Worker's Compensation Act (WCA) by failing to raise it in his pleadings and that the trial court erred by hearing Young's motion for summary judgment after the time permitted by § 802.08(1), STATS., and the court's scheduling order. Lentz further argues that the trial court erred by concluding that the WCA bar precluded her sexual harassment action against Young. Because we conclude that an employer's intentional sexual harassment of an employee is not an "accident" within the parameters of the WCA, we reverse the trial court's judgment and remand the cause for further proceedings.

FACTS

Lentz began working for Young as a waitress in 1983 or 1984 and continued in that position for approximately six years. On July 13, 1990, Lentz filed a complaint against Young alleging that he threatened, assaulted and touched her in an offensive manner over the course of a one-year period. Lentz further alleged that Young engaged in a continuous series of actions that constituted an offensive invasion of her privacy. Lentz alleged that Young's actions caused her emotional distress and that she was required to seek medical treatment as a result of her injuries.

The trial court subsequently entered a scheduling order requiring that all pretrial motions be scheduled and filed by April 25, 1991. The court scheduled the trial date for September 10.

Approximately four months before trial, Young's counsel deposed Lentz. During the deposition, Lentz stated that Young would call her into his office while she was working and make sexually explicit suggestions to her. Specifically, Lentz testified that Young told her "[h]e'd like to take me up to his house because [his wife] was gone and take me to bed and show me a good time. One time I was in the office and he said, 'I have something for you,' and he grabbed his pants and he had an erection in his pants." Lentz further testified that Young would "grab" and "touch" her at work. Lentz stated that Young would follow her outside of work and that he telephoned her on several occasions at home to make sexually explicit remarks to her and her thirteen-year-old daughter.

On September 4, the pretrial conference was held, and Lentz produced her itemization of damages. The itemization of damages revealed that Lentz was seeking damages arising out of her employment with Young. Contending that he had been unaware that Lentz would seek such damages, Young's counsel filed motions to enlarge the time to file a motion for summary judgment and for summary judgment seeking dismissal because the WCA barred suit against an employer. Lentz, however, argued that the motions raised an affirmative defense or a matter of avoidance that was not filed within the statutory time limit. Young responded that while the motions were not filed within the statutorily permitted time period, the motion to enlarge the time for filing was warranted because Lentz's delay in producing her itemization of damages prevented Young from learning that Lentz was seeking damages arising out of her employment until the pretrial conference.

The trial court found that Young's motion did not raise an affirmative defense, but rather an issue of subject matter jurisdiction that could not be waived. The trial court then removed the case from the trial calendar and scheduled further hearings on Young's motions. Both parties filed memoranda in support of their positions, and Lentz submitted an affidavit in which she stated that Young harassed her both at work and at home. She stated that Young called her at home and made sexually explicit and harassing statements to her. She further stated that while at work, Young pinched her buttocks and placed his hands on her chest and "private areas."

At the conclusion of the second hearing, the trial court found that Lentz's injuries stemmed from work-related incidents and that the WCA was her exclusive remedy. Additionally, the court found that all of the assaults and batteries of which Lentz complained took place at work, and that these claims were therefore covered under the WCA. Accordingly, the trial court granted Young's motions and dismissed Lentz's complaint.

DISCRETION TO EXPAND TIME AND PERMIT MOTION FOR SUMMARY JUDGMENT

Lentz first contends that the trial court erred by permitting Young to raise the exclusivity defense in his summary judgment motion because it was not timely filed. Under § 802.08(1), STATS., a party may only move for summary judgment within eight months after the filing of the summons and complaint or within the time set by the scheduling order under § 802.10, STATS. In this case, Lentz notes that Young filed his summary judgment motion approximately fifteen months after the summons and complaint were filed and approximately five months after the time set in the scheduling order. Lentz argues that the trial court has the discretion under § 801.15(2)(a), STATS., to expand the time for filing summary judgment motions for cause shown and upon just terms, only where the failure to act was the result of excusable neglect. Here, however, Lentz contends that as of the date of the scheduling conference, Young was aware that she was claiming work-related damages and, therefore, his failure to timely file the summary judgment motion was not the result of excusable neglect. Accordingly, Lentz claims the trial court erroneously exercised its discretion by permitting Young to file the motion.

The eight-month deadline for filing motions under § 802.08(1), STATS., is essential to the consistent and orderly administration of justice. However, the eight-month deadline is not an inflexible rule that the trial courts must blindly apply. See First Nat'l Bank v. Hansen, 84 Wis.2d 422, 427-28, 267 N.W.2d 367, 370 (1978). The filing of motions is a matter that directly impacts the trial court's administration of its calendar. Trial courts have the inherent power to control their dockets to achieve economy of time and effort. See Neylan v. Vorwald, 124 Wis.2d 85, 94, 368 N.W.2d 648, 653 (1985); Rupert v. Home Mut. Ins. Co., 138 Wis.2d 1, 7, 405 N.W.2d 661, 663 (Ct.App.1987). This power is essential to the trial courts' ability to function because it provides the courts with the authority to control their judicial business. Neylan, 124 Wis.2d at 94, 368 N.W.2d at 653. Consistent with this power, a trial court may, in the sound exercise of its discretion, permit a party to file a motion beyond the statutory time limit contained in § 802.08(1). We will not disturb the trial court's discretionary determinations in the conduct of a trial unless the parties have been prejudiced. Alexander v. Riegert, 141 Wis.2d 294, 298, 414 N.W.2d 636, 638 (1987).

In this case, the record is devoid of any indication that the trial court's decision to permit Young to file his summary judgment motion was prejudicial to Lentz. A contested hearing was held on the matter, and Lentz was given adequate time to prepare for the hearing and a fair opportunity to be heard on the issue.

Further, we note that the purpose of requiring parties to file motions for summary judgment within eight months of the filing of the summons and complaint is to prevent parties from using summary judgment as a delay tactic. Hansen, 84 Wis.2d at 427-28, 267 N.W.2d at 370. As the Hansen court noted: "[W]here a belated motion for summary judgment is predicated on a legal issue totally dispositive of the case, the motion does not cause delay but rather expedites the disposition of the litigation, and the trial court does not abuse its discretion in permitting it." Id. at 427-28, 267 N.W.2d at 370. Here, the WCA exclusivity provision was dispositive of the case. Accordingly, to expedite the litigation and avoid a potential waste of judicial time and resources, the trial court reasonably exercised its discretion by permitting Young to file the summary judgment motion after the time established by § 802.08(1), STATS., had expired.

WAIVER OF AFFIRMATIVE DEFENSE

Lentz contends that exclusivity of remedy under the WCA is an affirmative defense or avoidance that must be raised in the defendant's pleadings. Because Young failed to raise this defense in his pleadings, she argues that the trial court erred by failing to conclude that the defense was waived. See § 802.02(3), STATS.; Oetzman v. Ahrens, 145 Wis.2d 560, 571, 427 N.W.2d 421, 426 (Ct.App.1988) (defendant must affirmatively set forth in his or her pleadings any matter constituting an avoidance and failure to do so shall result in a waiver). Whether Young waived his right to assert the exclusivity provision of the WCA is a question of law that we review without deference to the trial court. See Rural Mut. Ins. Co. v. Peterson, 134 Wis.2d 165, 180, 395 N.W.2d 776, 782 (1986).

Lentz's contention is that under § 802.02(3), STATS., a defendant waives his or her affirmative defenses unless they are specifically pled. However, as our supreme court noted in Robinson v. Mount Sinai Medical Ctr., 137 Wis.2d 1, 16-17, 402 N.W.2d 711, 717 (1987), a defendant may raise an affirmative defense by motion. Here, the record shows, and Lentz concedes, that Young raised the...