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Waukesha County v. E.J.W., 2020AP370, 11/23/21, reversing an unpublished court of appeals’ opinion; case activity

This 4-3 “defense win” delivers a 1-2-3 punch! The decision:  (1) holds that a person undergoing commitment has the right to demand a jury 48 hours before the time set for his final hearing–even if the hearing is rescheduled; (2) reverses a recent, published court of appeals opinion to the contrary; and (3) resolves a split over the proper remedy for cases…
Continue Reading SCOW Issues Defense Win on Chapter 51 Jury Demands

One case short of a top 10 list, this is a summary of nine recent decisions from the Wisconsin Court of Appeals that discuss insurance coverage.

Readers should note that several of the decisions discussed are unpublished, per curiam decisions, so an understanding of Rule 809.23(3)(a)-(b) is important.

Despite a prohibition on publication, the per curiam decisions discussed in this article are important in that they help the reader understand how courts have analyzed various coverage issues, and ​that…
Continue Reading Nine Recent Insurance Coverage Appeals Court Decisions

For years, by including language in account agreements, banks have been able to apply funds deposited at their institution – funds that would otherwise be controlled by the account holder’s payable on death (POD) designation – directly to a decedent’s outstanding debt owed to that institution, without any need to file a claim (in court or in otherwise).

The following is an example of such a set-off provision, which may be found in an account agreement:
Upon the…
Continue Reading Why Your Clients’ PODs at Banks May Be Ineffective

Nov. 23, 2021 – A man who served nearly 12 years in prison out-of-state after being sentenced in Wisconsin is not entitled to have that time credited against his Wisconsin sentences because it was not connected to the conduct underlying the Wisconsin sentences, the Wisconsin Supreme Court has ruled.

In State v. Lira, the supreme court affirmed the link between Wis. Stat. section 973.15 and section 973.155 and restated that the test under section 973.155(5) for whether an…
Continue Reading Supreme Court Affirms ‘Connected to Conduct’ Rule for Sentence Credit Calculation

Nov. 23, 2021 – Wisconsin law does not restrict a circuit court’s award of restitution for reasonable repair cost to the value of the property.

In State v. Stone, 2020AP1661-CR (Nov. 17, 2021), the Court of Appeals District II interpreted Wis. Stat. section 973.20(2)(b) to hold that a restitution award for reasonable repair cost is tied to repair costs, not the actual value of the property.
Joy Ride Sidelined Farm Truck
In January 2017, Alex S. ​Stone drove…
Continue Reading Restitution for Reasonable Repair Cost Not Limited to Actual Value of Property

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People forming a new business and selecting between the different entity types may be unaware of the impact the formation choice can have on future lawsuits. In particular, the citizenship of the business can be critical to determining whether a case belongs in state court or federal court when a dispute involves over $75,000. With the many considerations business owners have to weigh when forming a new entity, the effect on hypothetical litigation is unlikely to be of primary…
Continue Reading Determining the Citizenship of Businesses

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New York Times, April 25, 1870

We launched this website two years ago with a post titled “A case of mistaken identity,” which explained how we had discovered that a photograph that people had believed to be Lavinia Goodell was not her at all. We commented that historical research is a lot like detective work. You must follow the facts wherever they lead, and if you find errors in the historical record, you must try to correct them. This…
Continue Reading “In the Matter of William and Sylvanus Lyon, Bankrupts.”

On November 18, 2021, OSHA announced that it has suspended activities to implement and enforce its COVID-19 Vaccination and Testing Emergency Temporary Standard, (ETS) pending further legal developments. The announcement is based upon the Fifth Circuit Court of Appeals’ November 12, 2021 grant of a motion to stay the ETS. The Sixth Circuit will next hear the matter and determine whether to uphold or lift the stay imposed by the Fifth Circuit. From there, the matter will likely go…
Continue Reading OSHA’s 100 Employee Vaccine Mandate – Dead in the Water

Florida recently enacted two major pieces of legislation that provide significant new estate planning opportunities for families with ties to the sunshine state. The Community Property Trust Act (CPTA) and the Florida Uniform Directed Trust Act (FUDTA), both of which went into effect earlier this year, are summarized below.
Community Property Trust Act
Florida is not a community property state, however, CPTA allows married couples to opt into community property treatment by creating a “community property trust” and transferring…
Continue Reading New Estate Planning Opportunities with Florida Trusts

State v. Alex Stone Scott, 2020AP1661-CR, 11/17/21, District 2 (recommended for publication); case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living…
Continue Reading Split Opinion Affirms Restitution Award Double the Value of Victim’s Property

On Nov. 5, 2021, the Centers for Medicare & Medicaid Services (CMS) issued an
interim final rule with comment period (IFC), requiring Medicare and Medicaid-certified providers and suppliers to establish COVID-19 vaccination requirements for all covered staff.

Part of the Biden-Harris Administration’s path out of the pandemic, the IFC applies to more than 17 million workers at approximately 76,000 health care facilities, including hospitals and long-term care facilities.

This article provides an overview of the IFC’s provisions, including…
Continue Reading Vaccine Mandate for Health Care Providers: The Deadline is Right around the Corner

On November 1, 2021, the American Society for Testing and Materials (ASTM) Committee on Environmental Assessment, Risk Management and Corrective Action (ASTM Committee E-50) approved a new standard for conducting Phase I Environmental Site Assessments (ESAs). The new standard, known as “E1527-21 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” which was published by ASTM in November 2021, makes significant modifications to the previous ASTM Phase I Standard Practice (E1527-13) that has been in…
Continue Reading The New ASTM E1527-21 Standard Practice for Phase I Environmental Site Assessments (ESA)

On Tuesday, November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation held a lottery-style drawing to select which of the 12 federal circuit court of appeals where petitions for review are currently pending as to which circuit will hear the challenges to OSHA’s emergency temporary standard mandating COVID-19 vaccinations in the workplace. Through that lottery process, the U.S. Court of Appeals for the Sixth Circuit was selected. As a result, the U.S. Judicial Panel on Multidistrict Litigation issued…
Continue Reading Sixth Circuit Selected to Hear Challenges to OSHA’s COVID-19 Vaccination Mandate

Asian Mother with daughter of mixed Chinese and African American ethnicity at home indoors posing playfully for portraits smiling and being silly

As it stands, Wisconsin has no training requirements for those who volunteer and are appointed as a guardian, but a bill currently before the Wisconsin Legislature may change that.

Senate Bill 92 proposes a list of requirements and training that a potential guardian must go through before taking guardianship.

Over time, it has become clear that some guardians can lack the adequate knowledge and or resources necessary for effectively carrying out their role. It is of vital importance to…
Continue Reading The Proposed Guardian Training Requirement: Consequences for Petitioners

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In a recent American Bar Association poll, the top reason given by prospective students for attending law school was to pursue “a career in politics, government, or public service.” Also in the top four reasons for attending law school included “an opportunity to be helpful” and a desire to “advocate for social change.”

It is encouraging that so many people go to law school looking to have a positive impact on their community. Given the students’ motivations and…
Continue Reading Making a Change, One Intern at a Time

Christmas grinch tree with red and gold toys, the top of the tree is tilted, poster, isolated. Vector 3d. Realistic

As we approach the holiday season, many marketing directors start to think about sending holiday items to clients such as a basket of cheese, a tin of popcorn, or a bottle of wine. In the insurance industry, this type of marketing activity is regulated as unfair inducements.

Unfair inducements, sometimes referred to as “rebating,” are a subset of unfair marketing practices. Under section 628.34(4) of the Wisconsin Statutes, no insurance company, employee, or intermediary may influence another person to…
Continue Reading How the Grinch Stole Your Holiday Gifts!