Renee K. VanCleve v. City of Marinette

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2003 WI 2 SUPREME COURT CASE NO.: OF WISCONSIN 01-0231 COMPLETE TITLE: 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, Keller Cement Contractors, Auto Owners Insurance, and State Farm Fire & Casualty, Co., Defendants. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 10 Reported at: 250 Wis. 2d 121, 639 N.W.2d 792 (Ct. App. 2001-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 7, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Marinette Tim A. Duket January 3, 2003 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: 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. 2003 WI 2 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-0231 (L.C. No. 99-CV-98) STATE OF WISCONSIN : IN SUPREME COURT Renee K. VanCleve and Thomas C. VanCleve, Plaintiffs-RespondentsPetitioners, v. FILED City of Marinette and Wausau Insurance Company, JAN 3, 2003 Defendants-Appellants, Cornelia G. Clark Clerk of Supreme Court Kenneth Keller, d/b/a Keller Cement Contractors, Auto Owners Insurance, and State Farm Fire & Casualty, Co., Defendants. REVIEW of a decision of the Court of Appeals. ¶1 N. PATRICK CROOKS, J. Rene and Affirmed. 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 No. 01-0231 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. The parties dispute how a Pierringer1 release, between ¶2 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 remained critical unchanged language since 1898, of Wis. and has consistently interpreted by this court. establishes successive liability Stat. between § been 81.17 has clearly and Section 81.17 clearly 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, pay that a municipality may not be held to the remaining amount of the jury award when an injured plaintiff enters into a Pierringer release with the defendant (here 1 The court of appeals correctly noted that "[a] Pierringer release operates to impute to the settling plaintiff whatever liability in contribution the settling defendant may have to non-settling defendants and to bar subsequent contribution actions the non-settling defendants might assert against the settling defendants." VanCleve v. City of Marinette, 2002 WI App 10, ¶3 n.1, 250 Wis. 2d 121, 639 N.W.2d 792 (Ct. App. 2001) (citing Pierringer v. Hoger, 21 Wis. 2d 182, 192-93, 124 N.W.2d 106 (1963)). 2 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. 2 No. 01-0231 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 returned cannot against the unsatisfied. obtain, a party Since judgment found VanCleve against primarily has the and obtained, not liable and 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, arguments we fail hold that the because VanCleve's statutory public policy language of Wis. Stat. § 81.17 is unambiguous, and we have previously ruled that public policy statutes. Additionally, application settlement § 81.17 considerations of § 81.17, agreements and our cannot VanCleve's as applied ignores the previous 3 unambiguous argument here, clear decisions trump will stifle statutory applying that the future history the of statute. No. 01-0231 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. I. ¶9 The facts in this FACTS 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. Kenneth VanCleve Keller, sued d/b/a both Keller the City Cement and the Contractors contractor, (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 3 In August 2000, VanCleve signed a Wisconsin Stat. § 81.17 states: Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village or county would be liable, and such 4 No. Pierringer release, Pierringer v. Hoger, 21 01-0231 Wis. 2d 182, N.W.2d 106 (1963), which released Keller from all claims. 124 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. damages are caused by, or arise from, the wrong, default or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefore; but the town, city, village or county may be sued with the person or private corporation so primarily liable. If the town, city, village or county denies its primary liability and proves upon whom such liability rests the judgment shall be against all the defendants shown by the verdict or finding to be liable for damages; but judgment against the town, city, village or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part; on such return being made the defendant town, city, village or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments. Wisconsin Stat. § 81.15 states in relevant part: If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining damages has a right to recover the damages from the town, city or village. If the damages happen by reason of the insufficiency or want of repairs of a highway . . . [t]he amount recoverable by any person for any damages so sustained shall not exceed $50,000. The procedures under s. 893.80 shall apply to the commencement of actions brought under this section . . . . 5 No. at 105. The Pierringer release also stated that 01-0231 VanCleve reserved the claims against the City. ¶11 circuit Following the signing of the Pierringer release, the 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 unsatisfied. of a judgment against Keller was returned 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 4 Wisconsin Stat. § 893.80(3) also caps recovery against a municipality at $50,000. 6 No. ¶14 01-0231 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. its reasoning, the court of appeals asserted that In 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 of VanCleve now seeks review of the decision of the court 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 (1) If entering Specifically, the issues presented in this case are: Wis. Stat. § 81.17 into a valid is applicable, Pierringer what release effect with a does settling defendant have for the plaintiff, VanCleve, in attempting to enforce (2) Did judgment the against City of the non-settling Marinette, by its City of actions, Marinette? waive its affirmative defenses? 5 See VanCleve, 250 Wis. 2d 121, ¶20. Weis predates Pierringer. 7 We recognize that No. ¶17 The interpret issues presented Wis. Stat. § 81.17. here require Statutory this 01-0231 court interpretation is to 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 terms." interpret State v. it based on "the 129 Williquette, plain meaning Wis. 2d 239, of its 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 ambiguous may legislative meaning. Only we other examine history, context, when statutory construction and subject language aids matter. is such as State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). ¶18 several VanCleve challenges the court of appeals holding on grounds. On Wis. Stat. § 81.17 and the first the effect issue, of the relating Pierringer to 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 cross8 No. 01-0231 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 Dismissal, thereby dismissing its cross-claims, the City waived its assertion that it was not primarily liable in this action. ¶20 Finally, considerations VanCleve favor argues settlement that over social contribution. policy VanCleve maintains that if this court accepts the City's arguments, the end result will be the stifling of future settlements. ¶21 The City Wis. Stat. § 81.17 City. his counters bars any that recovery the by application VanCleve against of the The City asserts that when the jury found Keller liable, liability Therefore, Keller, became since and primary VanCleve chose pursuant did instead not to to obtain settle Wis. Stat. § 81.17. a judgment through a against Pierringer release, VanCleve cannot recover against the City. II. APPLICABILITY OF WIS. STAT. § 81.17 AND EFFECT OF PIERRINGER RELEASE ON VANCLEVE CLAIM ¶22 As a threshold question, we must determine whether Wis. Stat. § 81.17 applies. We agree with the City that § 81.17 is at applicable to the case hand. First, § 81.17 creates primary and secondary liability for injuries caused by highway defects or defects on other public grounds. A curb and gutter falls under the definition of "[h]ighway defects" or defects on "other public grounds." See Wis. Stat. § 81.17. See also, Weis v. A.T. Hipke & Sons, Inc., 271 Wis. 140, 141, 72 N.W.2d 715 9 No. 01-0231 (1955)(holding a ditch, gully or depression to fall under the definition states of that negligent, "highway" if then any defect). person that person or Second, § 81.17 explicitly private or corporation is found private corporation shall be primarily liable under the statute. ¶23 In addition to the plain language of the statute, Wisconsin case law interpreting the statutory language provides guidance on this issue. ¶24 In Weis, we held that according to Wis. Stat. § 81.17 any liability the City of New Holstein (city) may have under this statute is secondary, not joint. A city is only liable for the portion of damages and costs that the private individual is unable to pay. In reaching that decision, we looked at the language of the statute and rejected the plaintiff's argument, that under the statute, the city involved was required to deny its primary liability and prove that the private property owner was primarily liable. said that according " . . . any person In rejecting the plaintiff's argument we to or the statutory private language corporation shall which be states: primarily liable . . . " the city cannot be jointly or primarily liable. In addition, we held that "[b]y statute the liabilities of these tort-feasors from joint . . . ." the outset Weis, 271 are Wis. successive, at 144. rather than Under such circumstances, the doctrine of contribution does not apply. ¶25 In a similar vein, we previously held in Dickens, that the municipal corporation (Eau Claire County) may not be held primarily liable. In that case, we addressed the application of 10 No. Wis. Stat. § 81.17 and held that the statute 01-0231 creates "a secondary liability on a town, city, village, or county, for defects in a highway which cause damage only when the negligence of another defect." tort-feasor Dickens also v. causally Kensmoe, 61 contributes that 220, Wis. 2d 211, to 212 N.W.2d 484 (1973). ¶26 Thus, according to Weis, and Dickens, the City may not be held primarily liable, and there can be neither joint, nor primary liability on the part of a town, city, village, or county, if any person or private corporation has any liability. Rather, this liability is successive, and as a result, any liability the municipality may have is only for the portion of the damages and costs that the private individual is unable to pay. Since the jury found Keller liable, he became primarily liable in accord with Wis. Stat. § 81.17, and the City's liability is triggered only if execution has been issued against Keller and returned unsatisfied. ¶27 since Based on the statute and the case law cited above, Keller was found to be nine percent (9%) causally negligent for VanCleve's injuries, it is clear that Keller is primarily liable under the statute. However, since Keller was dismissed from the action, no judgment can be rendered against Keller, and no execution can issue and be returned unsatisfied. ¶28 (1973) Dickens accurately v. Kensmoe, sets forth 61 the development of Wis. Stat. § 81.17: 11 Wis. 2d 211, historical 212 N.W.2d 484 construction and No. 01-0231 The statutory liability of a municipality for damages sustained as a result of a highway defect goes back to the beginning of this state. This liability was first created by the Revised Statutes of 1849, ch. 16, sec. 103.6 At that time, governments were immune from tort claims under a common-law, court-made rule which was expressly recognized in Hayes v. Oshkosh (1873), 33 Wis. 314, 14 Am. Rep. 760. The statute was a forerunner of present sec. 81.15 and was designed to ameliorate in part the harshness on the public of the doctrine of governmental tort immunity. This statute of 1849 expressly created liability on a town for damages caused by reason of the insufficiency or want of repair of a road. The language creating this liability became Title VI, ch. 19, sec. 120, Revised Stats. 1858, which was construed in Kittredge v. Milwaukee (1870), 26 Wis. 46. The court there held the statute imposed liability regardless of whether the municipality created the defect in the highway or the defect was allowed to exist due to insufficiency of repair. . . . . Thereafter, municipalities began to enact ordinances designed to protect themselves from Kittredge. These ordinances generally provided that when the negligence of a private tort-feasor had created the defect for which the municipality was also liable statutorily, the municipality's liability was only secondary to the liability of the private tort-feasor. A city ordinance of this type was involved in Hincks v. Milwaukee (1879), 46 Wis. 559, 1 N.W. 230, and was held valid and constitutional. 6 This statute provided in relevant part as follows: "If any damage shall happen to any person, his team, carriage, or other property, by reason of the insufficiency or want of repairs of any bridge, or sluiceway, or road in any town of this state, the person sustaining such damages shall have a right to sue for and recover the same against such town . . . ." Revised Stats. 1849, Title VI, ch. 16, 103. 12 No. 01-0231 . . . . In 1889, a statute was enacted entitled "Primary Liability for Damages Parties" which contained almost verbatim the language of these city ordinances. See Laws of 1889, ch. 471, secs. 1 and 2; 1 Sanborn & Berryman, Annotated Statutes (1889), sec. 1339 b. . . . . In 1898 the statute was revised and renumbered as sec. 1340 a and provided substantially as sec. 81.17 now reads. . . . The statute of 1898 creating sec. 1340 a was a revisor's statute and the revisor's note dealing with the section expressly states "An attempt has been made to condense and otherwise improve the language, without changing the legal effect thereof." . . . The critical language of this statute has ever since remained unchanged; in 1923 the section was renumbered by the Laws of 1923, ch. 108, sec. 101; in 1943, it was revised by the Laws of 1943, ch. 334, sec. 76; and eventually became sec. 81.17. Dickens, 61 Wis. 2d at 214-217. ¶29 As noted above, Wis. Stat. § 81.17 was originally created when governments were immune from tort claims under the common law. Dickens, 61 Wis. 2d at 214. VanCleve argues that § 81.17 is inapplicable based on Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), which abrogated the common law governmental immunity for tort claims. and asserts that VanCleve's argument that The City disagrees, § 81.17 should be interpreted to hold the City liable for the percentage of causal negligence as determined by the jury is without legal authority. If § 81.17 is interpreted as suggested by VanCleve, it would become, in essence, a joint liability statute, rather than a successive liability statute. Such an interpretation of § 81.17 would render § 895.045, the contributory negligence statute, to 13 No. some extent unnecessary or redundant.7 01-0231 The City maintains that the critical language of § 81.17 has remained unchanged since 1898, and has been clearly and consistently interpreted by this court. ¶30 As noted before, based on case law, it is clear that Wis. Stat. § 81.17 is a successive liability statute, rather than a government immunity statute. Accordingly, we find Holytz is not helpful in interpreting § 81.17 in the present because it does not directly address § 81.17. 7 895.045. Contributory negligence (1) Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed. (2) Concerted action. Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.85(5). 14 case No. ¶31 Next, VanCleve maintains that 01-0231 Wis. Stat. § 81.17 should be interpreted to hold the City liable for the percentage of causal negligence as determined by the jury. that the purpose municipalities from of Wis. Stat. § 81.17 paying the portion of VanCleve argues is to damages protect that were attributable to the individual who is primarily liable, and not to relieve a municipality from paying their portion of the damages. ¶32 This argument, while interesting, is not supported by any legal authority. The plain language of Wis. Stat. § 81.17 provides conditional protection to a municipality when it is sued along with another for injuries caused by highway defects. If both the municipality and the other individual or private corporation are found liable, the statute unambiguously states that the other person or private corporation is responsible for the entire award, if a judgment can be satisfied against it. Thus, § 81.17 is unambiguous, based on the case law and the clear language of the statute. ¶33 language Consequently, we hold that the unambiguous statutory of Wis. Stat. § 81.17 against the City. bars any recovery by VanCleve As previously noted, the critical language of § 81.17 has remained unchanged since 1898, and has been clearly and consistently interpreted by this court as illustrated in our opinions in Weis and Dickens. ¶34 When the jury found Keller liable, became primary pursuant to Wis. Stat. § 81.17. his liability So under the statute, Keller would have been responsible for all the damages 15 No. 01-0231 and the municipality would have been responsible only for the damages Keller was not able to pay. In this case, the Pierringer agreement represents what Keller was willing to pay, not what he judgment. was able to pay upon an execution issued on a By entering into the Pierringer release, VanCleve was essentially agreeing to accept a lesser amount in damages by releasing the individual that turned out to be primarily liable under the statute. Therefore, since VanCleve did not obtain a judgment against Keller, and chose instead, to settle through a Pierringer pursuant release, to VanCleve § 81.17. The cannot recover consequence of against entering the City into the Pierringer release with Keller is that VanCleve, in essence, indirectly waived any right to hold the City secondarily liable. ¶35 Thus, according to the holdings in Weis, 271 Wis. 140, and Dickens, 61 Wis. 2d 211, under Wis. Stat. § 81.17 there can be neither joint, nor primary liability, on the part of a municipality, if any person or private corporation is liable.8 ¶36 Accordingly, we hold that application Wis. Stat. § 81.17 bars any recovery against the City. the jury found Keller liable, he is primarily of Since liable and consequently, the City may not be held to pay the remaining amount of the jury award where, as here, an injured plaintiff enters into a Pierringer release with the defendant, Keller, who 8 VanCleve argues here, like the parties argued in Weis, that this is a case among joint tort-feasors. Weis v. A.T. Hipke & Sons, Inc., 271 Wis. 140, 144, 72 N.W.2d 715 (1955). We rejected that argument in Weis because Wis. Stat. § 81.17 establishes successive liability. Id. 16 No. is primarily liable under the statute. Since 01-0231 Keller was dismissed from the action, no judgment can be rendered against Keller, and no execution can issue and be returned unsatisfied. III. ¶37 City EFFECT OF PIERRINGER RELEASE ON AFFIRMATIVE DEFENSES Next, in addressing the second issue of whether the waived position that Pierringer its affirmative that release the City's waived under Wis. Stat. § 81.17. defenses, its VanCleve failure statutory We disagree. to takes object affirmative to the the defenses This argument fails to consider that there was no legal basis for the City to make such an objection. See Unigard Ins. Co. v. Insurance Co. of N. Am., 184 Wis. 2d 78, 87 n.5, 516 N.W. 2d 762 (Ct. App. 1994) (holding "[a] non-settling tort-feasor has no control over a claimant's decision to settle with another tort-feasor"); and Johnson v. Heintz, 73 Wis. 2d 286, 297, 243 N.W. 2d 815 (1976) (holding "no objection [by the third party] could be raised to the fact that the plaintiff and a joint tort-feasor defendant were exercising the option approved by Pierringer"). Moreover, this argument incorrectly assumes, without citing to authority, that the City has the burden of objecting to a Pierringer release. ¶38 Generally, the rule is that a joint tort-feasor has a right to contribution from another tort-feasor for any sums the first tort-feasor satisfaction of is the obligated to pay second's liability. a plaintiff in Fleming v. Threshermen's Mut. Ins. Co., 131 Wis. 2d 123, 130, 388 N.W.2d 908 (1986). 17 No. ¶39 01-0231 However, as previously noted, a Pierringer release, in effect, limits a second joint tort-feasor's liability to the amount reflecting its proportion of wrongdoing.9 differently, settling a Pierringer plaintiff release whatever operates liability Id. to in Stated impute to contribution the the settling defendant may have to non-settling defendants and to bar subsequent contribution actions the non-settling defendants might assert against the settling defendants. Pierringer, 21 Wis. 2d at 193. ¶40 summary In the Pierringer, judgment to dismiss settling a defendant cross-claim of a moved for non-settling defendant for contribution, after it entered into a Pierringer release with the plaintiff. comparative and We held that as long as the causal, contributory negligence of all the relevant parties is determined by the jury, there is no requirement that a settling defendant remain a party to the suit. Pierringer, 21 Wis. 2d 182, 124 N.W.2d 106. ¶41 According to our decision in Pierringer, the non- settling tort-feasor has no control over a claimant's decision to settle with another tort-feasor. Id. See also, Unigard, 184 Wis. 2d 78 at 87 n.5. ¶42 her In Johnson, a passenger in a car sued the driver and insurance company, American Family Insurance. American Family then filed a third-party complaint against State Farm for 9 It should be noted that the rules with regard to joint and several liability have been changed by recent amendments to Wis. Stat. § 895.045(1). 18 No. 01-0231 contribution. State Farm insured the driver of a car that rearended the car the plaintiff rode in. In Johnson, the plaintiff entered into a Pierringer release with State Farm over American Family's objection. court approved the Johnson, 73 Wis. 2d at 294-95. settlement agreement. On The trial appeal, we recognized that it was harmless error for the trial court to approve the settlement agreement. Id. The plaintiff did not have a right to settle with State Farm because there was no direct claim against State Farm. Id. at 297. However, the error was harmless, because the parties could have taken steps to place themselves in a direct adversary position. Id. at 298. The court reasoned that had State Farm "been an initial party defendant . . . no objection could be raised to the fact that the plaintiff and a joint tort-feasor defendant were exercising the option approved by Pierringer. The settlement of the claim against a defendant under those circumstances requires that he be dismissed from the action." ¶43 Id. at 297. Applying the rules of Pierringer and Johnson to the present case, the City did not have standing to object to the release, since pursuant to the terms, VanCleve assumed all of Keller's potential liability. Furthermore, it is clear from the rules set forth above, a non-settling tort-feasor has no control over a claimant's decision to settle with another tort-feasor. See also Unigard, 184 Wis. 2d at 87 n.5. ¶44 Therefore, since VanCleve and Keller were direct adversaries, any attempt by the City to object to the Pierringer release would have been unsuccessful. 19 No. ¶45 01-0231 Consequently, we reject VanCleve's argument that the City waived its statutory affirmative defenses by failing to object to the Pierringer release. appeals' approach, which held We approve of the court of that the non-settling City, claiming secondary liability as an affirmative defense, was not required to affirmative object to a defense.10 Pierringer VanCleve fails release to cite to retain any its authority which places the burden of objecting to the release upon the non-settling tort-feasor in a successive liability case. IV. EFFECT OF STIPULATION AND DISMISSAL ORDER ON AFFIRMATIVE DEFENSES ¶46 object Next, to the VanCleve argues Stipulation and that the Order of City's failure Dismissal, to thereby dismissing its cross-claims, waived its assertion that it was not primarily liable under this action. ¶47 We disagree. The failure to object to the Stipulation and Order of Dismissal is not a waiver of affirmative defenses, since it does not resolve any of the claims between VanCleve and the City. and Order This is supported by the fact that the Stipulation failed to mention any affirmative defense. Additionally, VanCleve neglects to cite authority, and we have uncovered none, that supports the contention that in dismissing 10 The court of appeals correctly pointed out that "[i]t is VanCleve's responsibility to evaluate the effects of a Pierringer release and to determine whether the release is in her best interests." VanCleve, 250 Wis. 2d 121, ¶32. 20 No. 01-0231 the cross-claim against Keller, the City waived its affirmative defense under Wis. Stat. § 81.17. ¶48 The City's (Def.-Appellant Br. at 16). cross-claim for contribution and its affirmative defenses are two distinct parts of the pleadings according that a to Wis. Stat. § 802.01(1). writing must contain an We have express previously statement held waiving a statutory affirmative defense before a court should find waiver. Gonzalez v. City of Franklin, 137 Wis. 2d 109, 132-133, 403 N.W.2d 747, 756 (1987). Here, the City simply acquiesced in the dismissal, consistent with our decisions in and Johnson Pierringer, which stated that no objection could be raised, and that dismissal Additionally, standard of the the released City's cross-claim for defendant cross-claim against indemnification and was required. Keller was a contribution. Therefore, because the failure to object to the Stipulation and Order of Dismissal did not resolve any of the claims between VanCleve and the City, there was no waiver of an affirmative defense. ¶49 Ultimately, the City's ability to object to Keller's dismissal was eliminated when a Pierringer signed by VanCleve releasing Keller. 296-297; Pierringer, 21 Wis. 2d 182. release had been Johnson, 73 Wis. 2d at As a result, we hold that the City did not waive its assertion that it was not primarily liable, when it failed to object to the Stipulation and Order of Dismissal. V. PUBLIC POLICY ARGUMENT 21 No. ¶50 a Lastly, VanCleve raises a public policy argument that ruling in favor of the personal injury claims. of 01-0231 Wis. Stat. § 81.17 contrary to City would stifle settlement of VanCleve maintains that the application does Wisconsin's not promote abrogation of pursuant to the decision in Holytz. settlement, governmental and is immunity However, it is a well- settled rule that if the language of a statute is clear and unambiguous, the language ascertain to statutory language construction aids (1986). must the is such not look statute's ambiguous as beyond meaning. may legislative the we statutory Only examine history, when other context, and State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d subject matter. 47 court As previously § 81.17 is unambiguous. noted, the statutory language of Therefore, we agree with the court of appeals that "[c]onsiderations of public policy cannot trump an unambiguous statute." VanCleve v. City of Marinette, 2002 WI App 10, 250 Wis. 2d 121, 639 N.W.2d 792 (citing Kelly Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992)). ¶51 stifle The application future settlement adequate notice of settlements. the of Wis. Stat. § 81.17 agreements, risks involved because in should parties entering into not have such Given the clear statutory language of § 81.17 and our previous decisions, it is incumbent upon the party entering into a Pierringer release to be aware of the risks associated with such an agreement and accordingly. 22 make settlement decisions No. ¶52 Hence, VanCleve's public policy arguments 01-0231 are not persuasive in the context of an unambiguous statute. VI. ¶53 CONCLUSION In summary, pursuant to Wis. Stat. § 81.17, the effect of entering into a valid Pierringer agreement is that VanCleve is barred from any recovery against the City. The critical language of § 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 primarily a private liable, corporation and secondarily liable. a who is, municipality, under who the statute, is deemed to be Therefore, a municipality may not be held responsible to pay the remaining amount of the jury award, when an injured plaintiff enters into a Pierringer release with the defendant (here statute. Keller) Section 81.17 who is primarily provides that liable under judgment against the a municipality is not enforceable until execution has been issued against the unsatisfied. party Since found primarily VanCleve has not liable and obtained, and returned cannot obtain, a judgment against Keller, no execution can issue and be returned unsatisfied, and, therefore, VanCleve cannot enforce a judgment against the City. ¶54 Next, because there was no legal basis for the City to object to the Pierringer release, we hold that the City did not waive any statutory affirmative defense by failing to object to the Pierringer release. 23 No. ¶55 01-0231 For similar reasons, we hold that the City did not waive its assertion that it was not primarily liable in this action, by failing to object to the Stipulation and Order of Dismissal. The Order of Dismissal did not resolve any claims between the City and VanCleve, and the City's ability to object was eliminated when the Pierringer release was signed by VanCleve. ¶56 Finally, arguments policy noted fail, we hold because we considerations before, that have cannot VanCleve's VanCleve's previously trump argument public held unambiguous that the that policy public statutes. As application of Wis. Stat. § 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. have adequate notice of the risks involved Parties should 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. If we adopt VanCleve's policy argument, we would, in essence, abrogate the intent of § 81.17 and render the statute meaningless. ¶57 For the reasons set forth herein, the decision of the court of appeals is affirmed. By the Court. The decision affirmed. 24 of the court of appeals is No. 1 01-0231

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