Meier v. Champ's Sport Bar & Grill, Inc.

• Decision Date: 13 March 2001
• Docket Number: No. 00-0589.,00-0589.
• Citation: 241 Wis.2d 605,2001 WI 20,623 N.W.2d 94
• Parties: Jason MEIER, by his guardian, Barbara Meier, Plaintiffs-Appellants, v. CHAMP'S SPORT BAR & GRILL, INC., Nedzmi Semovski, and Shpend Jonuzi, Defendants-Respondents, MID-CENTURY INSURANCE COMPANY, Defendant, Adam AUGUSTINE, Defendant-Co-Appellant.
• Court: Wisconsin Supreme Court

241 Wis.2d 605

2001 WI 20

623 N.W.2d 94

Jason MEIER, by his guardian, Barbara Meier, Plaintiffs-Appellants, v. CHAMP'S SPORT BAR & GRILL, INC., Nedzmi Semovski, and Shpend Jonuzi, Defendants-Respondents, MID-CENTURY INSURANCE COMPANY, Defendant, Adam AUGUSTINE, Defendant-Co-Appellant.

No. 00-0589.

Supreme Court of Wisconsin.

Oral argument November 6, 2000.

Decided March 13, 2001.

For the plaintiffs-appellants and defendant-co-appellant there were briefs (in the court of appeals) by Bruce D. Huibregtse, Barbara A. Neider, Laura Skilton Verhoff and Stafford Rosenbaum LLP, Madison, and oral argument by Barbara A. Neider.

For the defendants-respondents there was a brief (in the court of appeals) by Bruce M. Davey, Robert M. Whitney and Lawton & Cates, S.C., Madison, and oral argument by Robert M. Whitney.

¶ 1. ANN WALSH BRADLEY, J.

This case comes before us on a petition to bypass the court of appeals pursuant to Wis. Stat. (Rule) § 809.60 (1997-98). The plaintiff, Jason Meier (Meier), by his guardian, his mother Barbara Meier, appeals an order of the circuit court for Dane County, Judge Mark A. Frankel presiding, granting summary judgment to the defendants, Champ's Sports Bar and Grill, Inc. (Champ's), Nedzmi Semovski (Semovski), and Shpend Jonuzi (Jonuzi). He also appeals the circuit court's order granting Semovski's motion for an extension of time in which to file an answer and denying Meier's motion to strike Semovski's answer and motion for default judgment.¹

¶ 2. On summary judgment, the circuit court determined that the defendants, vendors of alcohol, were entitled to immunity under Wis. Stat. § 125.035(2) (1993-94).² It further concluded that Meier was not entitled to an exception to that immunity because he was a provider of alcohol. Meier, however, asserts that he is an injured third party and may proceed under an exception to the defendants' general immunity. We conclude that an individual who provides alcohol to an underage person that is a substantial factor in causing an accident is not a third party under Wis. Stat. § 125.035(4)(b) and therefore cannot take advantage of the exception to the immunity bestowed upon providers of alcohol. We also reject Meier's argument that the circuit court erroneously exercised its discretion in granting defendant Semovski an extension of time to file his answer, and in denying Meier's motion to strike and motion for default judgment. Accordingly, we affirm the orders of the circuit court.³

¶ 3. The historical facts necessary to resolve the issues presented in this case are substantially undisputed. On the evening of November 25, 1994, Meier, Bryan Johnson (Johnson), and Adam Augustine (Augustine) patronized Champ's, a Sun Prairie restaurant and bar, for the purpose of eating dinner. Meier and Augustine were both 19 years old, and Johnson was 21 years of age.

¶ 4. Upon seating themselves in the bar area of Champ's, a server approached the young men to take their orders. Johnson proceeded to order a beer, and the two 19-year-olds did the same. The server brought the first of many pitchers of beer to be consumed that night. No personnel at Champ's asked Meier, Johnson, or Augustine for identification to verify that they were of legal drinking age, and no member of the group represented that he was of legal drinking age.

¶ 5. The young men spent the evening drinking and playing darts at Champ's. While the deposed testimony of Johnson and Augustine differs to some degree, it is undisputed that the group drank at least five pitchers of beer. The total number could have been as many as ten pitchers. The bartender on duty that night testified that the group possibly consumed eight or nine pitchers of beer. At some point after having lost all interest in eating dinner, the group switched from beer to mixed drinks, purchasing several rounds of Jack Daniel's and Coca-Cola.

¶ 6. To obtain their drinks, the three alternated making trips to the bar to pick up new rounds. To pay for their drinks, Meier and Augustine alternated purchasing rounds. Johnson testified that he did not have any money that night and that all the alcohol was purchased by Meier and Augustine. Augustine testified it was possible that Johnson purchased some alcohol.

¶ 7. There is no question that at the close of the evening, all three men were intoxicated. In that intoxicated state, they left Champ's in order to obtain some food at a truck stop that they frequented. It was agreed that Augustine, who described himself as "very drunk," would drive and the three entered his automobile. Meier rode in the backseat as a passenger. About halfway to the truck stop, the group called off their trip and decided to drive Meier home to his brother's house in Madison.

¶ 8. At about 1:05 a.m. on November 26, Augustine lost control of the vehicle and the car went careening into an embankment. As a result of the collision, Meier was thrown from the vehicle. Augustine, who had to exit the vehicle through the sunroof, found Meier laying unconscious some twenty feet in front of the vehicle. Meier suffered a skull fracture and a severe traumatic brain injury. The injuries left him permanently disabled. Augustine testified that he attributes the cause of the accident to his intoxication, and the parties do not dispute that the accident was the result of Augustine's intoxication. ¶ 9. In 1995, Meier brought this action against Champ's, Semovski, Jonuzi, Augustine and their insurers. Champ's is a closely held corporation, of which Semovski and Jonuzi are the sole shareholders. Both Semovski and Jonuzi were also present at Champ's on the evening of November 25, 1994. Meier alleged that Champ's, Semovski, and Jonuzi committed negligence in serving alcohol to Augustine and that the provision of alcohol was a substantial factor in causing Meier's injuries.⁴

¶ 10. In beginning the action, Meier obtained substituted service of process on Semovski when he served the summons and complaint on Semovski's wife at home on April 27, 1995. The registered agent for Champ's was served with an identical summons and complaint at the restaurant on April 30. Semovski took only the latter summons and complaint served on Champ's to his attorney, and did not mention the other. Semovski's attorney then referred Semovski to another law firm, where he forwarded the summons and complaint served on Champ's. On Monday, May 22, Semovski and Champ's filed their joint answer.

¶ 11. Because of the three-day difference between the dates of service, Semovski's answer had been due on May 17. Accordingly, Meier moved to strike the answer and moved for default judgment. In response, Semovski moved to enlarge the time in which to file an answer or for relief from the effects of a late answer. The circuit court concluded that there was excusable neglect and accepted Semovski's untimely answer after granting his motion for an extension of time and denying Meier's motion to strike and motion for default judgment.

¶ 12. After several years of discovery and pretrial activity, the defendants moved for summary judgment, arguing that they were entitled to immunity under Wis. Stat. § 125.035(2) because Meier was not an injured third party under the § 125.035(4)(b) exception to that immunity.⁵ Subsection (4)(b) excepts providers of alcohol from immunity where they provide alcohol to an underage person "if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages . . . were a substantial factor in causing injury to a 3rd party." The defendants argued that Meier was not a third party under this provision because he was a party to the sale and procurement of the alcohol that he claimed was a substantial factor in causing his injuries.

¶ 13. In an extensive written decision the circuit court agreed that the defendants were entitled to immunity and granted the defendants summary judgment on all claims against them. The court concluded that Meier did not qualify under a common and approved definition of the term "third party."⁶ The court explained:

Because one who procures alcohol for an underage drinker is a party to the transaction that leads to the underage drinker's intoxication, they cannot qualify as a "third party" under this definition. It is difficult to imagine a class of individuals that the legislature would have more likely intended to exclude from qualifying as a "third party" than those persons involved in procuring alcohol for the underage drinker who ultimately injures another party.

¶ 14. In response, Meier unsuccessfully sought reconsideration of the circuit court's order granting summary judgment. He subsequently appealed. The parties jointly requested to bypass the court of appeals.

I

[1, 2]

¶ 15. We first address the circuit court order granting summary judgment in favor of the defendants. In reviewing a decision to grant summary judgment we employ the same methodology used by the circuit court. Stelpflug v. Town of Waukesha, 2000 WI 81, ¶ 17, 236 Wis. 2d 275, 612 N.W.2d 700. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (1999-2000). The resolution of this case implicates the construction of Wis. Stat. § 125.035(4)(b) within this summary judgment context. Such a question of statutory interpretation is a question of law that we review independently of the determination of the circuit court. Czapinski v. St. Francis Hosp., Inc., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120.

¶ 16. Our summary judgment determination essentially will depend on whether the defendants are entitled to the immunity bestowed upon providers of alcohol under Wis. Stat. § 125.035(2) or whether the § 125.035(4)(b) exception to that immunity applies. Given the general rule of immunity under § 125.035(2) for providers of alcohol, Meier's claims against the defendants are...