Miller Brewing Co. v. Labor and Industry Review Com'n, 91-1125

• Decision Date: 22 February 1993
• Docket Number: No. 91-1125,91-1125
• Citation: 495 N.W.2d 660,173 Wis.2d 700
• Parties: MILLER BREWING COMPANY and National Union Fire Insurance, Plaintiffs-Appellants-Petitioners, v. LABOR AND INDUSTRY REVIEW COMMISSION and John E. Beverly, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 660

495 N.W.2d 660

173 Wis.2d 700

MILLER BREWING COMPANY and National Union Fire Insurance, Plaintiffs-Appellants-Petitioners, v. LABOR AND INDUSTRY REVIEW COMMISSION and John E. Beverly,

Defendants-Respondents.

No. 91-1125.

Supreme Court of Wisconsin.

Argued Nov. 30, 1992.

Decided Feb. 22, 1993.

For the plaintiffs-appellants-petitioners there were briefs by George K. Whyte, Jr., Patricia K. McDowell, Donald L. Schriefer, and Quarles & Brady, Milwaukee and oral argument by Mr. Whyte.

For the defendant-respondent, Labor & Industry Review Com'n the cause was argued by Lowell E. Nass, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

For the defendant-respondent, John E. Beverly, there was a brief by Arthur Heitzer, Milwaukee and oral argument by Arthur Heitzer.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, Miller Brewing Co. v. Labor and Industry Review Commission, 166 Wis.2d 830, 480 N.W.2d 532 (Ct.App.1992), affirming an order of the Circuit Court for Milwaukee County, John E. McCormick, Circuit Judge. The circuit court dismissed with prejudice an action by Miller Brewing Company (Miller Brewing) and National Union Fire Insurance (National Union Insurance), challenging the Labor and Industry Review Commission's (LIRC's) award of worker's compensation to John E. Beverly, an employee of Miller Brewing.

The sole question presented is the meaning of the phrase "adverse party" in sec. 102.23(1)(a), Stats.1989-90, which governs judicial review of LIRC's worker's compensation decisions. More specifically, the question of law posed is whether Twin City Fire Insurance Company (Twin City Insurance), one of Miller Brewing's worker's compensation carriers, is an "adverse party" for purposes of sec. 102.23(1)(a), Stats.1989-90, thus requiring that it be made a defendant in the circuit court action for judicial review in the case at bar.

The circuit court concluded that it lacked subject matter jurisdiction over this action because Twin City Insurance was an adverse party which was not named as a defendant in the circuit court action as required by sec. 102.23(1)(a) and dismissed the action. ¹ The court of appeals affirmed the circuit court. For the reasons set forth below, we conclude that Twin City Insurance is an adverse party and that Miller Brewing's and National Union's failure to name Twin City Insurance as a defendant requires dismissal of the action. Accordingly we affirm the decision of the court of appeals.

Section 102.23(1)(a) requires that an action be brought and the adverse parties be made defendants within the statutory 30-day period. If an appellant does not comply with sec. 102.23(1)(a) the circuit court cannot proceed with the case; the circuit court must dismiss the action with prejudice and the appellant loses the right to judicial review of LIRC's decision. ²

While courts have acknowledged that dismissal is a harsh penalty for failure to comply with sec. 102.23(1)(a), courts have also recognized that uniformity, consistency and compliance with procedural rules are necessary to maintain a simple, orderly and uniform system of conducting business in the courts. If the statutory prescriptions are to be meaningful, they must be unbending. Gomez v. LIRC, 153 Wis.2d 686, 693, 451 N.W.2d 475 (Ct.App.1989). Dismissal is the appropriate remedy in a case such as this when an adverse party was not named as a defendant.

We do, however, wish to express our concern that sec. 102.23(1)(a) continues to engender litigation. Section 102.23(1)(a) should not be a trap for lawyers and litigants. It should be easy to ascertain which parties must be named as defendants. Perhaps sec. 102.23(1)(a) needs legislative reexamination and revision.

I.

The material facts are undisputed for purposes of this review. John E. Beverly served in the United States Army from November 1967 to April 1969. He served sixteen months of combat duty in Vietnam, was wounded on three occasions, and received an honorable discharge. In 1974 Beverly became a full-time production employee of Miller Brewing. He maintained this full-time position from June 1974 to January 20, 1983. During Beverly's employment at Miller Brewing his co-workers discovered that he was easily startled, and they intentionally caused him to have wartime flashbacks by making loud and unexpected noises. As a result of these incidents, Beverly was absent from work for extended periods of time.

The first such absence began on April 23, 1981 when a co-worker produced a loud noise by either popping a milk carton or setting off a firecracker in a company lunchroom where Beverly was eating. The resulting noise caused Beverly to drop to the floor and experience a flashback to his Vietnam combat experiences. As a result of this incident, Beverly was placed under psychiatric care and was unable to return to work for nearly seven months.

The harassment continued after Beverly returned to work. Beginning in May 1982, he missed seven months of work after his co-workers fired a "bottle rocket" in his direction in the lunchroom.

In January 1983, upon Beverly's return to work, the harassment resumed. A co-worker picked up and dropped a steel table, evoking a startle response. Later that month, he suffered a work-related ankle sprain which left him unable to work. That injury is not involved in this action. Although his ankle had healed by February 20, 1983, Beverly was psychologically unable to return to his workplace.

Beverly filed a claim for worker's compensation, alleging that the harassment by his co-workers had aggravated his post-traumatic stress disorder to a debilitating level. In June 1989, after two hearing examiners held eight days of hearings, the Department of Industry, Labor and Human Relations (DILHR) concluded that, although Beverly's post-traumatic stress disorder was primarily associated with his military service and pre-existed his employment with Miller Brewing, it had been aggravated and accelerated beyond a normal progression as a result of his employment. DILHR concluded that Beverly was entitled to worker's compensation and that the date of injury was January 20, 1983, the last day that Beverly had worked for Miller Brewing.

In 1981 and 1982, when Beverly's harassment-related absences occurred, Miller Brewing's worker's compensation insurer was National Union Insurance. In 1983, when Beverly ended his employment with Miller Brewing, Miller Brewing's worker's compensation insurer was Twin City Insurance.

Because Twin City Insurance had insured Miller Brewing since January 1, 1983, and Beverly's date of injury was found to be his last day of work, Twin City Insurance was liable to pay Beverly his worker's compensation on Miller Brewing's behalf. National Union Insurance was dismissed from the proceedings.

Miller Brewing and Twin City Insurance petitioned LIRC for review of DILHR's decision, and Beverly cross-petitioned, complaining of the dismissal of National Union Insurance. In May 1990, LIRC concluded that Beverly had suffered an occupational disease as a result of his employment. LIRC concluded, however, that the date of injury was April 23, 1981, the date of Beverly's first wage loss resulting from the occupational disease. Under LIRC's decision, National Union Insurance became liable to pay Beverly worker's compensation on Miller Brewing's behalf. LIRC dismissed Twin City Insurance from any liability for Beverly's claim.

Miller Brewing Company and National Union Insurance filed an action for judicial review of LIRC's ruling pursuant to sec. 102.23(1)(a), Stats.1989-90, naming only LIRC and Beverly as defendants. LIRC moved to dismiss the circuit court action for lack of subject matter jurisdiction, asserting that Twin City Insurance's interests were adverse to those of National Union Insurance and that Twin City Insurance should have been made a defendant within 30 days of LIRC's order as required by sec. 102.32(1)(a). Beverly joined in LIRC's motion to dismiss and also filed a conditional crossclaim or counterclaim against Twin City Insurance under sec. 102.23(1)(c) for review of that part of LIRC's decision which found the date of injury to be April 1981 (resulting in lower benefits for Beverly). The crossclaim or counterclaim was conditioned upon the circuit court's finding that it had jurisdiction to review National Union Insurance's and Miller Brewing's complaint. ³

The circuit court granted the motions to dismiss, and the court of appeals affirmed. In this court, Miller Brewing and National Union Insurance seek review of the decision of the court of appeals.

II.

The sole issue presented by this case is a question of law: what is the meaning of "adverse party" under sec. 102.23(1)(a), Stats.1989-90. We ordinarily determine issues of law independently of the circuit court or court of appeals.

Section 102.23(1)(a) provides that a party aggrieved by a LIRC order may seek judicial review of the order by commencing an action within 30 days after the date of the order or award. Section 102.23(1)(a) requires that "the adverse party" shall be made a defendant. Section 102.23(1)(a) provides inter alia:

[W]ithin 30 days after the date of an order or award made by [LIRC] ... any party aggrieved thereby may ... commence, in circuit court, an action against [LIRC] for the review of the order or award, in which the adverse party shall also be made a defendant. (emphasis added) ⁴

This court has interpreted the meaning of "adverse party" in several cases. Although each case presents a unique set of facts, these past decisions are helpful in establishing the meaning of the term "adverse party" as used in sec. 102.23(1)(a).

In several cases, including one dating back to 1916, this court has interpreted "adverse party" to mean "the one in whose favor the award was made." Hammond-Chandler L. Co. v. Industrial Commn, 163 Wis. 596, 602, 158 N.W. 292 (1916).

The...