Caleb R. Gerbitz

Interpretation will be the supreme court’s primary task next month, as the court’s November oral argument calendar lists three civil cases, each touching on intriguing questions of statutory and contract interpretation.

Banuelos v. University of Wisconsin Hospitals and Clinics Authority, No. 2020AP1582


Oral Argument: November 1

For the second time in as many years, the court is called upon to consider the statutory fee restrictions for obtaining copies of patient healthcare records. See Wisconsin Stat. § 146.83(3f)(b). Last term, in Townsend v. ChartSwap, the court held the statutory fee schedule does not apply to an independent medical records management firm. 2021 WI 86, 399 Wis. 2d 599, 967 N.W.2d 21. This term, the question is whether the fee schedule permits a healthcare provider to charge any fees at all when electronic patient healthcare records are requested. The court of appeals said no. It observed that the statute lists a permissible fee for “paper copies” but is silent on electronic copies—silence the court interpreted as forbidding health care providers from charging for electronic records. The extensive briefing before the supreme court offers a litany of interpretive arguments for and against the court of appeals’ reading of the statute.

DEKK Property Development, LLC v. DOT, No. 2020AP2146

Eminent Domain

Oral Argument: November 1

In 1961, a Kenosha County property owner conveyed a portion of land abutting a state trunk highway for use on a highway improvement project. The agreement conveyed “all existing, future or potential common law or statutory easements or rights of access.” Still, it reserved a driveway to the highway “conforming to the regulations of the State Highway Commission.” Sixty-one years later, the current property owner brought this right-to-take action to stop DOT from closing the driveway without compensation. The court of appeals held no compensation was required based on its reading of the 1961 agreement and because closing the driveway was within DOT’s police power to regulate driveways under Wis. Stat. § 86.07(2) and Wis. Admin. Code § Trans 231.01. The supreme court will consider whether that decision was correct, as well as a threshold procedural question on whether a right-to-take action is a proper vehicle for the plaintiff’s claim.

Secura Supreme Insurance Company v. Estate of Huck, No. 2020AP1078-FT


Oral Argument: November 7

While on the job, Daniel Keith Huck was struck and killed by an underinsured motorist. Following his death, Huck’s estate sought recovery from three sources: (1) the tortfeasor’s insurer, which had a $25,000 liability limit; (2) the worker’s compensation insurer for Huck’s employer; and (3) Huck’s insurer, Secura, which provided $250,000 in UIM coverage. The worker’s compensation insurer initially paid Huck’s estate about $36,000. However, the estate refunded nearly $10,000 of that sum back to the worker’s compensation insurer following a settlement with the tortfeasor (per Wis. Stat. § 102.29(1)(b)’s formula for distributing proceeds recovered from a tortfeasor). In light of these developments, Secura, relying on a reducing clause in the UIM policy, decreased the estate’s recovery by the roughly $10,000 paid by—but later refunded back to—the worker’s compensation insurer. The question is whether this was a lawful reduction under Wis. Stat. § 632.32(5)(i)2., which authorizes reductions for sums “paid or payable under any worker’s compensation law.” The court of appeals rejected Secura’s use of the reducing clause, holding that § 632.32(5)(i)2. permits reductions only if the insured actually retained the amount paid under the worker’s compensation law. In reaching its conclusion, the court of appeals relied heavily on Teschendorf v. State Farm Insurance Cos., 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d 258, in which the supreme court considered a similar application of § 632.32(5)(i)2. Secura doesn’t ask the supreme court to overrule Teschendorf, but it urges the court to take a close look at the statutory text to reach a different conclusion here.

New to the Docket

Gahl v. Aurora Health Care, Inc., No. 2021AP1787

Petition for review granted on September 14, 2022

The supreme court will review whether the circuit court erroneously granted a temporary injunction directing a healthcare provider to administer Ivermectin to a patient. In a 2-1 decision, the court of appeals held the injunction was erroneously issued because the patient failed to show a reasonable likelihood of success on the merits.

Rennick v. Teleflex Medical Inc., No. 2020AP1454

Petition for review granted on September 13, 2022

The court will consider petitioner Teleflex Medical’s request that Wisconsin adopt the “Learned Intermediary Doctrine.” The doctrine provides that prescription-drug and medical-device manufacturers satisfy their duty to warn consumers of any risks associated with their products by informing the prescribing physician of those risks. The court of appeals noted that Wisconsin has not adopted the doctrine and held that it would not apply if it were adopted.