VanCleve v. City of Marinette, 2003 WI 2 (Wis. 1/3/2003)
| Decision Date | 03 January 2003 |
| Docket Number | No. 01-0231.,01-0231. |
| Citation | 2003 WI 2 |
| Parties | Renee K. VanCleve and Thomas C. VanCleve, Plaintiffs-Respondents Petitioners, v. City of Marinette and Wausau Insurance Company, Defendants-Appellants, Kenneth Keller, d/b/a Keller Cement Contractors, Auto Owners Insurance, and State Farm Fire & Casualty, Co., Defendants. |
| Court | Wisconsin Supreme Court |
Appeal from the Circuit Court, Marinette County, Tim A. Duket, Judge.
REVIEW of a decision of the Court of Appeals. Affirmed. 2002 WI App 10 Reported at: 250 Wis. 2d 121, 639 N.W.2d 792 (Ct. App. 2001-Published)
For the plaintiffs-respondents-petitioners there was a brief by Jonny L. Waara and Petrucelli & Petrucelli, P.C., Iron River, Michigan, and oral argument by Jonny L. Waara.
For the defendants-appellants there was a brief by James O. Moermond, III, and Law Offices of Stilp and Cotton, Wausau, and oral argument by Peter M. Farb.
¶ 1 Rene and Thomas VanCleve (VanCleve) commenced this action to recover damages arising out of an injury Rene VanCleve sustained to her left knee when she fell into a trench adjacent to a newly installed cement curb in the City of Marinette. VanCleve now seeks review of a published decision of the Court of Appeals, District III, which reversed a judgment in the amount of $49,311.15 entered against the City of Marinette (City) by the Circuit Court for Marinette County, the Honorable Tim A. Duket presiding.
¶ 2 The parties dispute how a Pierringer1 release, between an injured plaintiff and the defendant who is primarily liable under Wis. Stat. § 81.17 (1999-2000),2 affects the enforceability of a judgment against a non-settling municipality in light of the statute. Section 81.17 establishes the statutory liability of a municipality or a person or private corporation when injury results from a highway defect.
¶ 3 The critical language of Wis. Stat. § 81.17 has remained unchanged since 1898, and has been clearly and consistently interpreted by this court. Section 81.17 clearly establishes successive liability between a person or private corporation who is, under the statute, primarily liable and a municipality who is deemed to be secondarily liable. We hold, therefore, that a municipality may not be held to pay the remaining amount of the jury award when an injured plaintiff enters into a Pierringer release with the defendant (here Kenneth Keller d/b/a Keller Cement Contractors) who is primarily liable under the statute.
¶ 4 Wis. Stat. § 81.17 further provides that a judgment against a municipality is not enforceable until execution has been issued against the party found primarily liable and returned unsatisfied. Since VanCleve has not obtained, and cannot obtain, a judgment against the defendant Keller, no execution can issue and be returned unsatisfied, and, therefore, VanCleve cannot enforce a judgment against the City.
¶ 5 In addition, we hold that the City did not waive its statutory affirmative defenses by failing to object to the Pierringer release and stipulating to the dismissal, because the City did not have a legal basis to make such an objection. Similarly, we hold that the Stipulation and Order of Dismissal is not a waiver of the City's affirmative defenses, since it does not resolve any of the claims between VanCleve and the City pursuant to the Johnson and Pierringer cases. Johnson v. Heintz, 73 Wis. 2d 286, 297, 243 N.W. 2d 815 (1976); Pierringer v. Hoger, 21 Wis. 2d 182, 193, 124 N.W.2d 106 (1963).
¶ 6 Finally, we hold that VanCleve's public policy arguments fail because the statutory language of Wis. Stat. § 81.17 is unambiguous, and we have previously ruled that public policy considerations cannot trump unambiguous statutes. Additionally, VanCleve's argument that the application of § 81.17, as applied here, will stifle future settlement agreements ignores the clear statutory history of § 81.17 and our previous decisions applying the statute. Parties should have adequate notice of the risks involved in entering into settlements, and it is incumbent upon the party entering into a Pierringer release to be aware of the risks associated with such an agreement and make settlement decisions accordingly.
¶ 7 If we adopt VanCleve's policy argument, we would, in essence abrogate the intent of Wis. Stat. § 81.17 and render the statute meaningless.
¶ 8 Accordingly, we affirm the court of appeals' decision.
¶ 9 The facts in this case are undisputed. In August 1998, Renee VanCleve injured her left knee when she fell into a trench adjacent to a newly installed cement curb in the City of Marinette. VanCleve sued both the City and the contractor, Kenneth Keller, d/b/a Keller Cement Contractors (Keller), alleging negligence in the construction and maintenance of the curb and gutter. Keller was named in the suit based on information from the City, stating that the contractor was also responsible for the curb that VanCleve injured herself on. In addition to providing this information, the City cross-claimed against Keller for contribution alleging negligence.
¶ 10 The City asserted Wis. Stat. §§ 81.17 and 81.15 among several affirmative defenses.3 In August 2000, VanCleve signed a Pierringer release, Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963), which released Keller from all claims. The Pierringer release terms provided that in exchange for $7,500, VanCleve would release Keller and the insurers from any claims resulting from VanCleve's fall on August 24, 1998. Pet'r App. at 105. The Pierringer release also stated that VanCleve reserved the claims against the City.
¶ 11 Following the signing of the Pierringer release, the circuit court approved a stipulation and signed an order to dismiss. The City joined the stipulation to dismiss Keller from the lawsuit, which expressly stated that the City's cross-claim against Keller was settled.
¶ 12 After the Stipulation and Order for Dismissal, the jury returned a special verdict finding the City ninety percent (90%) causally negligent, Keller nine percent (9%) causally negligent, and VanCleve one percent (1%) causally negligent. The jury awarded VanCleve $15,000 in past non-economic loss damages, and $60,000 in future non-economic loss damages.
¶ 13 The City filed a motion to dismiss VanCleve's claim, arguing that no judgment could be enforced against it, because it would violate the requirements of Wis. Stat. § 81.17. The City claimed that the judgment against it was not enforceable until execution of a judgment against Keller was returned unsatisfied. Because VanCleve settled with Keller, the City argued that VanCleve cannot recover against it. The circuit court denied the City's motion and ordered a judgment be entered against the City, and limited it to $50,000 in accordance with Wis. Stat. § 81.15 and § 893.80(3).4
¶ 14 The City appealed and the court of appeals reversed. In its holding, the court of appeals held that the City was not responsible for paying any amount of the jury verdict under Wis. Stat. § 81.17 because, under the statute, if no judgment was entered against the individual who is primarily liable, then the City, who is secondarily liable, cannot be held to pay. In its reasoning, the court of appeals asserted that VanCleve failed to cite any authority to support the argument that the City remains primarily liable for its ninety percent (90%) causal negligence. The court of appeals relied on Weis v. A.T. Hipke & Sons, Inc., 271 Wis. 140, 72 N.W.2d 715 (1955), finding the statute to be unambiguous.5
¶ 15 VanCleve now seeks review of the decision of the court of appeals, and specifically asks this court to affirm the circuit court's decision, which granted judgment in the amount of $49,311.15 against the City. We granted VanCleve's petition for review and now turn to the issues presented.
¶ 16 Specifically, the issues presented in this case are: (1) If Wis. Stat. § 81.17 is applicable, what effect does entering into a valid Pierringer release with a settling defendant have for the plaintiff, VanCleve, in attempting to enforce judgment against the non-settling City of Marinette? (2) Did the City of Marinette, by its actions, waive its affirmative defenses?
¶ 17 The issues presented here require this court to interpret Wis. Stat. § 81.17. Statutory interpretation is a question of law we review independently, benefiting from the decisions of the court of appeals and the circuit court. Industry to Industry, Inc. v. Hillsman Modular Molding, Inc., 2002 WI 51, 252 Wis. 2d 544, 644 N.W.2d 236. In interpreting a statute, we first look to the language of the statute itself to attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Furthermore, it is a well established rule that if the language of a statute is clear and unambiguous, the court must not look beyond the statutory language to ascertain the statute's meaning. Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).
¶ 18 VanCleve challenges the court of appeals holding on several grounds. On the first issue, relating to Wis. Stat. § 81.17 and the effect of the Pierringer release, VanCleve asserts that the statute is inapplicable here because Keller is not a party to the lawsuit. Next, VanCleve argues that the court of appeals erred, and that a judgment can be entered against the City even though there was a valid Pierringer release.
¶ 19 Next, in addressing the second issue, VanCleve maintains that by failing to object to the Pierringer release, and because of its stipulation to the dismissal of its cross-claims against Keller, the City waived its statutory affirmative defense that it was not primarily responsible or liable for this action. Similarly, VanCleve argues that in failing to object to the Stipulation and Order of...
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