Stelling v. Middlesex Ins. Co.
| Decision Date | 12 January 2023 |
| Docket Number | 2022AP536 |
| Court | Wisconsin Court of Appeals |
| Parties | George T. Stelling, a minor by his Guardian ad Litem Eric J. Ryberg, Mark Stelling and Rebekah Stelling, Plaintiffs-Respondents, v. Middlesex Insurance Company, Friede & Associates, LLC and Zachary J. Dorow, Defendants, Mt. Morris Mutual Insurance Company, Edward P. Scanlan and Oliver J. Scanlan, Defendants-Appellants, Trek Bicycle Corporation Group Health Benefit Plan, Delta Dental of Wisconsin and State Farm Mutual Automobile Insurance Company, Subrogated Defendants. |
APPEAL from an order of the circuit court for Dane County: No 2021CV2999, RHONDA L. LANFORD, Judge. Affirmed and cause remanded for further proceedings.
Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.
¶1 George Stelling was injured when the vehicle in which he was a passenger was involved in an accident in Sauk County Wisconsin. George Stelling, by his guardian ad litem, and his parents Mark and Rebekah Stelling (collectively "Stelling"), subsequently filed this negligence action in the Dane County Circuit Court against the drivers and owners of the vehicles involved in the accident and their insurers. Defendants Mt. Morris Mutual Insurance Company Edward Scanlan, and Oliver Scanlan filed a motion to change venue from Dane County to Sauk County. Defendants Middlesex Insurance Company, Friede & Associates, LLC, and Zachary Dorow filed a letter in the circuit court joining Mt. Morris's motion.[1] In support of its motion, Mt. Morris argued that it is entitled to a change in venue as a matter of right under Wis.Stat. § 801.50(2)(a) and (c) (2019-20) because it presented evidence showing that Mt. Morris Mutual does not do substantial business in Dane County, thereby rendering venue improper as to Mt. Morris Mutual.[2] In the alternative, Mt. Morris sought a discretionary change in venue to Sauk County in the interest of justice and for the convenience of the parties and witnesses under Wis.Stat. § 801.52. The circuit court denied the motion to change venue under both §§ 801.50(2) and 801.52. This court granted Mt. Morris's petition for leave to appeal the circuit court's order under Wis.Stat. § 808.03(2).[3]
¶2 Mt. Morris focuses in this appeal, as it did in the circuit court, on whether venue in Dane County is proper as to Mt. Morris Mutual. Mt. Morris argues that Mt. Morris Mutual is entitled to a change in venue as a matter of right because Wis.Stat. § 801.50(2)(c) limits venue to only one county where a defendant does "substantial business," and the evidence shows that Dane County is not that county as to Mt. Morris Mutual. Mt. Morris argues in the alternative that, if venue in Dane County is proper as to Mt. Morris Mutual, the circuit court erroneously exercised its discretion in determining that a change of venue to Sauk County is not "in the interest of justice or for the convenience of the parties or witnesses" under Wis.Stat. § 801.52.
¶3 We reject Mt. Morris's argument for a change of venue as a matter of right, and affirm the circuit court, on several independent bases. One basis stems from the longstanding rule from our supreme court that, in an action against multiple defendants, if venue is proper as to any one defendant, then the action is properly venued, and any other defendant is not entitled to a change in venue as a matter of right. State ex rel. Boyd v. Aarons, 239 Wis. 643, 646, 2 N.W.2d 221 (1942) ().
¶4 The moving defendants in the circuit court were Mt. Morris Mutual and its insureds, and Middlesex Insurance and its insureds. The circuit court's order denied "[t]he Defendants'" motion to change venue as a matter of right. Middlesex Insurance and Friede have not petitioned for appellate review. The circuit court venue order as to Middlesex Insurance and Friede controls and cannot be reversed. Thus, the rule in Boyd requires that we reject Mt. Morris's appeal, affirm the order, and remand for further proceedings.
¶5 The next independent basis to conclude that Mt. Morris's appeal fails is that the movants did not show in the circuit court that venue in Dane County is improper as to each of Middlesex Insurance, Friede, and Mt. Morris Mutual under the venue selection statutes, Wis.Stat. §§ 801.50-801.53. This basis is supported by alternative grounds: (1) the challenge to venue fails because Middlesex did not timely move in the circuit court to change venue as to the non-natural person defendants Middlesex Insurance and its insured Friede, and did not present any proof or argument in the circuit court showing that Middlesex Insurance and Friede do not do substantial business in Dane County; (2) the circuit court properly denied the motion to change venue as a matter of right because Mt. Morris failed to support the motion with proof or argument in the circuit court that Middlesex Insurance and Friede do not do substantial business in Dane County; (3) the circuit court properly determined that the proof provided by Mt. Morris is sufficient to show that Mt. Morris Mutual does substantial business in Dane County. For each of those reasons, the motion to change venue as a matter of right was properly denied by the circuit court.
¶6 As to Mt. Morris's argument under Wis.Stat. § 801.52, we conclude that the circuit court properly exercised its discretion in denying the motion to change venue under § 801.52. Accordingly, we affirm.
¶7 The following material facts are not disputed. In October 2019, two vehicles accidentally collided in Sauk County. Oliver Scanlan was the driver of one of the vehicles involved in the collision, and George Stelling was in the passenger seat of that vehicle. At the time of the accident, Oliver Scanlan was a minor and he was driving the vehicle owned by, and with the permission of, Edward Scanlan. The other vehicle was owned by Friede and was driven by Zachary Dorow, a Friede employee.
¶8 Stelling filed a complaint in Dane County naming as defendants the drivers and the owners of the vehicles, their insurers, and several subrogated parties.[4] In the complaint, Stelling alleged that the drivers were negligent in the operation of their respective vehicles and that George Stelling suffered severe injuries as a result of the collision.
¶9 George Stelling and his parents are residents of Sauk County. Oliver Scanlan and Edward Scanlan are also residents of Sauk County. Zachary Dorow is a resident of Sauk County. Dorow's employer, Friede, is a domestic business with its principal office in Sauk County. Mt. Morris Mutual, which insured Edward and Oliver Scanlan at the time of the collision, has its principal office in Waushara County. Middlesex Insurance, which insured Friede and Dorow at the time of the collision, has its principal office in Portage County.
¶10 Mt. Morris filed a motion to change venue to Sauk County and Middlesex, by letter, subsequently joined the motion. Mt. Morris argued that it is entitled to a change in venue as matter of right because venue in Dane County is improper as to Mt. Morris Mutual under Wis.Stat. § 801.50(2)(c), based on evidence that it asserted shows that Mt. Morris Mutual does not do substantial business in Dane County.[5] That evidence comprises averments that Mt. Morris Mutual had, as of February 1, 2022, 559 insurance policies in force in Dane County and, as of March 7, 2022, earned $859,145 in annual premiums from those policies. Alternatively, Mt. Morris sought a discretionary change of venue to Sauk County in the interest of justice and for the convenience of the parties and witnesses under Wis.Stat. § 801.52. Mt. Morris and Stelling filed briefs with supporting affidavits and presented arguments at a hearing, at the conclusion of which the circuit court issued a ruling denying "[t]he Defendants' motion."
¶11 After this court granted Mt. Morris's petition for leave to appeal, Mt. Morris and Stelling filed their appellate briefs and this court held oral argument.
¶12 We will present additional background regarding the parties' filings, the evidence presented in the circuit court, and the circuit court's ruling in the analysis that follows.
¶13 The parties do not dispute that venue in Dane County is not proper as to the Stellings, the Scanlans, and Dorow. The resolution of Mt. Morris's appeal based on its asserted entitlement to a change of venue as a matter of right depends on whether venue in Dane County is also improper as to Mt Morris Mutual, Middlesex Insurance, and Friede. In the first two sections that follow, we explain why we reject Mt. Morris's appeal on this basis. In the third section, we explain why we reject Mt. Morris's appeal based on its challenge to the circuit court's denial of its motion for a change a venue as a matter of discretion.
¶14 To repeat, the circuit court order that Mt. Morris's appeal denied "[t]he Defendants' motion" to change venue, and those defendants were Mt. Morris and Middlesex.
¶15 In this court, more than three months after we granted Mt Morris's petition for leave to appeal that order, Middlesex filed a "Statement Joining Mt. Morris' Appeal." The Statement notes that Middlesex joined Mt. Morris's motion in the circuit court and states that Middlesex had advised Mt. Morris's counsel that Middlesex "supports and joins" Mt. Morris's position on appeal. The Statement concludes, "There is no formal procedure set forth in the Wisconsin Statutes to join/support another party's position without filing a...
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