Opinion
No. 02-2880.
Opinion Released: November 20, 2003. Opinion Filed: November 20, 2003. Opinion Vacated: December 11, 2003.
APPEAL and CROSS-APPEAL from a judgment and orders of the circuit court for Dodge County: ANDREW P. BISSONNETTE, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before Dykman, Anderson, and Lundsten, JJ.
.
On December 11, 2003, the Court of Appeals issued an order vacating the opinion issued on November 20, 2003, in the above case.
Juneau County appeals a summary judgment order in a multi-party suit which dismissed its claim against its worker's compensation insurance carrier, Safety National Casualty Corporation (SNCC). SNCC cross-appeals a subsequent summary judgment order that dismissed all claims against Sauk County and required Juneau County to reimburse Milwaukee County for worker's compensation payments Milwaukee County made. We conclude that Sauk County was properly dismissed from the suit and that judgment in favor of Milwaukee County was properly entered against Juneau County, but that Juneau County's claim against SNCC was improperly dismissed. Accordingly, we affirm in part, reverse in part, and remand to have the trial court enter judgment consistent with this opinion.
BACKGROUND
¶ 2. The basic facts underlying this case are undisputed. Sauk County law enforcement officers pursued a murder suspect into Juneau County. Juneau County officers established a command post to coordinate search efforts by law enforcement personnel from both Sauk and Juneau Counties. At the request of a Juneau County officer, the Sauk County Sheriff contacted Milwaukee County officials and requested the use of a helicopter from Milwaukee County to assist in the search. A helicopter, manned by two Milwaukee County deputy sheriffs, was sent to Juneau County and participated in the search under the direction of Juneau County officers. The helicopter crashed in Dodge County as it was returning to Milwaukee County after the search had been completed, killing both deputies aboard.
¶ 3. Milwaukee County made worker's compensation payments to the families of the deceased officers, then sought reimbursement from either Sauk or Juneau County. The trial court concluded that Sauk County had no liability and that Juneau County was required to reimburse Milwaukee County, but that Juneau County's insurance policy with SNCC did not cover the payments.
STANDARD OF REVIEW
¶ 4. This court reviews summary judgment decisions de novo, applying the same methodology employed by the circuit court. Brownelli v. McCaughtry , 182 Wis.2d 367, 372, 514 N.W.2d 48 (Ct.App. 1994). That methodology is well established and, since there is no dispute among the parties, need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk , 2001 WI 25, ¶¶ 20-24, 241 Wis.2d 804, 623 N.W.2d 751.
DISCUSSION Statutory Liability for Worker's Compensation Payments
¶ 5. Wisconsin Stat. § 66.0513 (2001-02) sets forth a compensation scheme for law enforcement personnel who are called upon to perform duties outside of the territorial limits of the municipality where they are regularly employed. It provides:
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
(1) Any chief of police, sheriff, deputy sheriff, county traffic officer or other peace officer of any city, county, village or town, who is required by command of the governor, sheriff or other superior authority to maintain the peace, or who responds to the request of the authorities of another municipality, to perform police or peace duties outside territorial limits of the city, county, village or town where the officer is employed, is entitled to the same wage, salary, pension, worker's compensation, and all other service rights for this service as for service rendered within the limits of the city, county, village or town where regularly employed.
(2) All wage and disability payments, pension and worker's compensation claims, damage to equipment and clothing, and medical expense arising under sub. (1), shall be paid by the city, county, village or town regularly employing the officer. Upon making the payment the city, county, village or town shall be reimbursed by the state, county or other political subdivision whose officer or agent commanded the services out of which the payments arose.
There is no dispute among the parties that Milwaukee County was initially required to make worker's compensation payments to the families of the deceased deputy sheriffs. However, SNCC contends that its insured, Juneau County, had no obligation to reimburse Milwaukee County under § 66.0513(2) because the services of the Milwaukee officers were requested, not "commanded" within the meaning of the statute, and because an officer from Sauk County, rather than Juneau County, initially contacted Milwaukee County to request aid. We reject each of these contentions.
¶ 6. First, we do not agree that the term "commanded" in Wis. Stat. § 66.0513(2) means "ordered" in the compelling sense argued by SNCC. Rather, we are persuaded that "commanded" is better interpreted to mean either "requested" or "directed." Such definitions are consistent both with the common usage of the word and with its context in the statute. For instance, among the multiple definitions given for the transitive verb "command" are "to direct authoritatively," "to have at one's immediate bidding or disposal," "to cause or direct to come or go," and "to order or request to be given." Webster's Third New international dictionary 455 (unabridged ed. 1993). Thus, the phrase "commanded the services," as used in the statute, could be commonly understood to mean that the services were requested by the officer of another political subdivision, or that the services were performed under the direction of that officer. Employing either of these common usages of the term "commanded" would allow the employer of an officer who responds to the request of the authorities of another municipality to obtain reimbursement from the requesting county. This comports with the clear intent of the statutory reimbursement scheme. We conclude, therefore, that the trial court properly determined that the services of the Milwaukee County officers had been "commanded" once they responded, even though Milwaukee County could have chosen to deny assistance.
¶ 7. Second, we agree with the trial court that the undisputed facts establish that it was Juneau County, rather than Sauk County, who "commanded" the services of the Milwaukee County officers. Although it was the Sauk County Sheriff who made the initial contact with Milwaukee County, that officer was himself acting at the request of a Juneau County officer. Moreover, once the Milwaukee County officers arrived in Juneau County, they acted under the direction of Juneau County authorities. The fact that Sauk County identified itself as the requesting agency on certain paperwork is immaterial because, in making our legal determination, we independently review the circumstances surrounding the request for assistance. The fact that Sauk County officers had initiated the manhunt in Sauk County is also irrelevant because the search had moved into Juneau County before Milwaukee County officials were contacted. We conclude the trial court properly dismissed Sauk County from the case and properly determined that Juneau County was liable to Milwaukee County under Wis. Stat. § 66.0513(2). Accordingly, we affirm that portion of the judgment.
Policy Coverage
¶ 8. We turn next to the question whether Juneau County's liability falls within the scope of its worker's compensation policy. The SNCC policy provides, in relevant part:
A. Coverage of Agreement
This Agreement applies only to Loss sustained by the EMPLOYER because of liability imposed . . . by the Workers' Compensation or Employers' Liability Laws of . . . [Wisconsin] . . . on account of bodily injury by accident . . . includ[ing] resulting death.
. . . .
In no event shall [SNCC] be liable for any Loss voluntarily assumed by the EMPLOYER under any contract or agreement, expressed or implied.
. . . .
D. Definitions
(1) "Loss" — shall mean actual payments legally made by the EMPLOYER . . . in satisfaction of: (a) statutory benefits, (b) settlements of suits and claims, and (c) awards and judgments. . . .
. . . .
(3) "Exclusions from Loss" — . . .
. . . .
(g) Injury sustained by any Employee in, upon, entering, or alighting from any EMPLOYER owned, leased, or regularly chartered aircraft unless coverage is intended by inclusion in Item 6 of the Declarations or by endorsement to this Agreement. Coverage will extend to aircraft purchased, leased, or regularly chartered only if the EMPLOYER notifies [SNCC] within thirty (30) days from the date of the initial exposure. In the event of such notification, however, [SNCC] may modify coverage and/or charge additional premiums.
. . . .
(6) "Employee" — as respects liability imposed upon the EMPLOYER by the Workers' Compensation Law of [Wisconsin], . . . shall mean any person performing work which renders the EMPLOYER liable under the Workers' Compensation Law. . . .
SNCC contends there is no coverage because: (1) the deputies that were killed were not Juneau County employees under state law; (2) the mutual aid reimbursement statute is not a worker's compensation or employer's liability law; (3) the use of the helicopter fell within the policy's aircraft exclusion; (4) by requesting mutual aid, Juneau County forfeited coverage by voluntarily assuming a loss; (5) Juneau County forfeited coverage by accepting liability without SNCC's approval and otherwise failing to engage in good faith claims administration; and (6) Juneau County did not pay a premium to cover the services rendered. Again, we disagree with each of SNCC's contentions.
¶ 9. First, SNCC's arguments regarding whether the Milwaukee County officers were Juneau County employees under state law are misplaced because the policy defined what it meant by employees. The question is whether the deputies fell within the policy's definition of employees, not within some other legal definition.
¶ 10. Second, under the language of the policy, any person performing work which renders the employer liable under the worker's compensation law is considered an employee. We have explained why Juneau County was responsible under Wis. Stat. § 66.0513(2) for reimbursing Milwaukee County for the worker's compensation payments which Milwaukee County had made. The fact that the reimbursement provision is located in the mutual aid statutes, rather than in the worker's compensation statutes, does not mean that it cannot be fairly characterized as part of Wisconsin's worker's compensation law. To the contrary, the provision plainly assigns ultimate responsibility for certain worker's compensation payments. We therefore have no difficulty concluding that the Milwaukee County officers, at the time of their deaths, were acting as "employees" within the meaning of the policy.
¶ 11. Third, the policy's aircraft exclusion is inapplicable because Juneau County had not "owned, leased, or regularly chartered" the helicopter flown by the deputies. Milwaukee County loaned Juneau County the use of the aircraft on a one-time emergency basis-a situation not specified in the exclusion clause.
¶ 12. Fourth, we do not agree that Juneau County "voluntarily assumed" a loss within the meaning of Section A of the policy by requesting aid. For one thing, at the time aid was requested, there was no loss yet in existence. Moreover, Juneau County's ultimate responsibility for the worker's compensation payments was a matter of statutory obligation, not a voluntarily assumed liability.
¶ 13. Fifth, the policy does have a clause providing that SNCC may disclaim coverage if Juneau County fails to exercise diligence, prudence, and good faith in the claim settlement process. We see no exercise of bad faith, however, in Juneau County's acknowledgment of its statutory obligation to reimburse Milwaukee County for the worker's compensation payments.
¶ 14. Finally, SNCC argues that it did not intend to insure multiple jurisdictions against losses for which no premium was paid. SNCC's argument is unavailing because, if the opposite interpretation of the policy were adopted, SNCC would potentially be required to cover worker's compensation payments for Juneau County employees who were injured while rendering assistance to other localities. SNCC's construction merely exchanges one potential exposure for another equally likely one. In any event, we have concluded that Juneau County's premium did cover the claimed loss.
¶ 15. The portion of the summary judgment which dismissed SNCC is reversed, and the matter is remanded to allow the trial court to enter judgment in Juneau County's favor on the policy coverage issue. SNCC shall be taxed with the costs of both the appeal and cross-appeal, pursuant to Wis. Stat. Rule 809.25(1). We do not, however, deem the cross-appeal frivolous and, therefore, deny Sauk County's motion for attorney fees and other costs under Wis. Stat. Rule 809.25(3).
By the Court. — Judgment and orders affirmed in part; reversed in part and cause remanded with directions.