Mark Anderson v. American Family Mutual Insurance Company

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2003 WI 148 SUPREME COURT CASE NO.: OF WISCONSIN 02-0980 COMPLETE TITLE: Mark Anderson and Janet Anderson, his wife, Plaintiffs-Appellants, v. American Family Mutual Insurance Company, Defendant-Respondent, Mary Anne Brasure, Defendant-Respondent-Petitioner, Gregory L. Brasure, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 315 259 Wis 2d. 413, 655 N.W.2d 531 (Ct. App. 2002-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 16, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Marinette Tim A. Duket November 25, 2003 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-respondent-petitioner there were briefs by Mark A. Pennow, Tina M. Dahle and Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, and oral argument by Mark A. Pennow. For the plaintiffs-appellants there was a brief by Frank W. Kowalkowski and Hanaway, Weidner, Bachhuber, Woodward & Maloney, S.C., Green Bay, and oral argument by Frank W. Kowalkowski. An amicus curiae brief was filed by Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, on behalf of The Wisconsin Academy of Trial Lawyers. 2003 WI 148 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-0980 (L.C. No. 01 CV 77) STATE OF WISCONSIN : IN SUPREME COURT Mark Anderson and Janet Anderson, his wife, Plaintiffs-Appellants, v. FILED American Family Mutual Insurance Company, NOV 25, 2003 Defendant-Respondent, Cornelia G. Clark Clerk of Supreme Court Mary Anne Brasure, Defendant-Respondent-Petitioner, Gregory L. Brasure, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 DIANE S. SYKES, J. Affirmed. In Wisconsin, persons who furnish alcohol beverages to others are statutorily immune from civil liability arising out of the act of furnishing the alcohol. Wis. Stat. § 125.035(2)(1999-2000).1 1 See This immunity is subject to All references to the Wisconsin Statutes are to the 19992000 version unless otherwise noted. No. 02-0980 an exception: if the provider knew or should have known that the person to whom he was providing the alcohol was under the legal drinking age and the alcohol provided to the underage person is a substantial factor in causing injury to a third party, there is no immunity. ¶2 Wis. Stat. § 125.035(4). The issue in this case is whether an underage drinker who is injured as a result of the consumption of alcohol that was provided to a companion underage drinker "third party" under the exception to immunity. is an injured We hold that he is. ¶3 The defendant, Mary Anne Brasure, provided a bottle of vodka to her 19-year-old son, Gregory, who took the vodka to the family's vacation home where he and two friends drank it. of the friends, intoxication. ¶4 Craig Anderson, died of acute One alcohol Craig's parents sued Mary Anne Brasure. The circuit court applied the statutory immunity and dismissed the case on summary judgment. The court of appeals reversed, injured concluding that Craig was an third party within the meaning of the exception to immunity for injuries to third parties arising underage persons. out of the provision of alcohol to Anderson v. Am. Family Mut. Ins. Co., 2002 WI App 315, ¶1, 259 Wis. 2d 413, 655 N.W.2d 531. ¶5 illegal We affirm. provision of underage son, Gregory. Craig Anderson was a third party to the alcohol by Mary Anne Brasure to her While Craig Anderson's consumption of the alcohol may well affect the factfinder's evaluation of his contributory negligence, it does not alter his status as a third 2 No. party to the original illegal transaction between 02-0980 Mary Anne Brasure and her son for purposes of the statutory exception to immunity. I. ¶6 FACTS AND PROCEDURAL HISTORY This is an appeal from an order of summary judgment. Therefore, we take the following facts from the pleadings and materials submitted on the motion in the circuit court. On or about March 19, 1999, Mary Anne Brasure ("Mary Anne") purchased a 1.75 liter bottle of vodka for her son Gregory, who was then 19 years old, and left it on her kitchen table with a note that said, "Greg, you owe me $12.00." Gregory took the vodka to the family's vacation property in rural Marinette County, where he and two friends, Craig Anderson and Robert Tripp, drank it. Late that night or early the next morning, Craig died of acute alcohol intoxication, having consumed enough alcohol to put his blood alcohol concentration at between .357 percent and .402 percent. ¶7 Craig's parents, Mark and Janet Anderson, brought a claim in Marinette County Circuit Court for Craig's wrongful death, naming Mary Anne, Gregory, and the Brasures' insurer, American Family Mutual Insurance Company ("American Family") as defendants. the basis American Mary Anne and Gregory moved for summary judgment on of the Family immunity moved for statute, summary exclusions in its homeowner's Duket granted summary Wis. judgment policy. judgment in Stat. on The favor § 125.035(2). the basis Honorable of Mary Tim Anne of A. and Gregory, concluding that they were immune under the statute, and 3 No. also granted coverage American under the Family's insurance motion policy in part, for the 02-0980 finding claim no against Gregory but concluding that material issues of fact existed as to coverage for the claim against Mary Anne.2 ¶8 the The court of appeals affirmed the circuit court as to insurance coverage issue and reversed as to Mary Anne's immunity. ¶1. Gregory's immunity, but Anderson, 259 Wis. 2d 413, The court held that because Craig was a third party to the transaction whereby Mary Anne provided alcohol to Gregory, and because the substantial alcohol factor Mary in Anne provided causing Craig's to Gregory death, Mary was Anne a is subject to suit under the exception to immunity contained in Wis. Stat. § 125.035(4)(b). Anderson, 259 Wis. 2d 413, ¶12. We granted review, and now affirm. II. ¶9 STANDARDS OF REVIEW In reviewing a grant of summary judgment, we employ the same methodology used by the circuit court. Town of Waukesha, N.W.2d 700. 2000 WI 81, ¶17, 236 Stelpflug v. Wis. 2d 275, 612 Summary judgment is appropriate when there is no genuine issue of material fact in dispute and the moving party is entitled to § 802.08(2). interpretation judgment as The resolution of undisputed facts. Wis. a matter of Stat. of law. Wis. this case also requires the context of § 125.035 in the Stat. A question of statutory interpretation is a 2 The circuit court's summary judgment orders in favor of Gregory and American Family are not before this court. 4 No. question Francis of law Hosp., that Inc., we review 2000 WI de 80, novo. ¶12, 02-0980 Czapinski St. Wis. 2d 316, 236 v. 613 N.W.2d 120. III. ¶10 Craig DISCUSSION The Andersons' suit against Mary Anne is predicated on being an injured third party under the exception to immunity contained in Wis. Stat. § 125.035(4)(b). The immunity statute follows: states the general rule of immunity as "A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol 125.035(2). beverages to another person." Wis. Stat. § The note that Mary Anne affixed to the bottle of vodka establishes that she procured alcohol for Gregory. This fact, which is undisputed, is sufficient to trigger the general grant of immunity from civil liability under Wis. Stat. § 125.035(2). ¶11 Mary Anne loses this immunity, however, if exception contained in Wis. Stat. § 125.035(4) applies. exception is comprised of two subsections. The first the The sets limits on who may be covered by the exception; the second sets forth the substantive conditions necessary for satisfying the exception. The first subsection states: In this subsection, "provider" means a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to an underage person in violation of s. 125.07(1)(a). Wis. Stat. § 125.035(4)(a). 5 No. ¶12 Mary definition Anne's depends status whether upon as a her "provider" provision 02-0980 under of this alcohol Gregory was in violation of Wis. Stat. § 125.07(1)(a). to That statute states that "[n]o person may procure for, sell, dispense or give away any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age." Wis. Stat. § 125.07(1)(a). Applying this statute to the undisputed facts here, it is clear that Mary Anne is a "provider" for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(a), because she gave her underage son unaccompanied Gregory by a a bottle parent, in of vodka violation while of he Wis. was Stat. § 125.07(1)(a). ¶13 The substantive subsection of the immunity exception provides, in relevant part: Subsection (2) [the grant of immunity] does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party. Wis. Stat. § 125.035(4)(b). Mary Anne knew her son Gregory was under the legal drinking age. She argues that Craig is not a third party under Wis. Stat. § 125.035(4)(b). ¶14 Mary Anne contends that because Craig consumed the vodka that ultimately killed him, he himself is a "provider" under the terms of the statute and therefore cannot also be a third party. Mary Anne reasons that Craig is a "provider" because he "procured" the vodka from Gregory before drinking it; 6 No. 02-0980 in other words, he "provided" the vodka to himself by drinking it with Gregory. This use of the term "provider" is illogical and runs contrary to the use of the term in the statute. ¶15 grant The general focus of the statute both the immunity and the exception is on the provision of alcohol beverages by one person to another, and whether the one who does the providing can be held liable for any injuries that may flow from that act. Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶24 n.10, 241 Wis. 2d 605, 623 N.W.2d 94. itself is not concerned with a person's own The statute contributory liability for providing alcohol to himself, although the injured person's contributory fault may bear upon a defendant's ultimate liability. ¶16 The status of the injured person as a third party to the provider's act of furnishing the alcohol comes into play in determining the applicability of the exception to immunity. exception defines beverages for . "provider" . . an as underage one who person "procures in violation The alcohol of s. 125.07(1)(a)," and proceeds to eliminate the provider's immunity where the provision of alcohol to the underage person causes injury to a third party. Wis. Stat. § 125.035(4)(a), (b). If the injured claimant is a third party to the transaction by which the defendant provided alcohol to an underage person, and the alcohol was a substantial factor in causing the third-party claimant's injury, then the exception to immunity applies and the defendant may be liable to the claimant. 7 No. ¶17 02-0980 Therefore, the applicability of the immunity exception to Mary Anne's potential liability to the Andersons for Craig's wrongful death depends upon whether Craig was a third party to the transaction by which Mary Anne provided alcohol to Gregory. Whether Gregory was secondarily a "provider" to Craig or Craig "provided" to himself by drinking with Gregory is not relevant. That Craig may be considered a first party to a subsidiary transaction between himself and Gregory (because they consumed the alcohol together) does not make him a party to the transaction by which Mary Anne provided the alcohol to Gregory. ¶18 By its terms, then, the exception to immunity under Wis. Stat. § 125.035(4)(b) applies when: 1) the injured person is a third party to the provider's act of furnishing alcohol to an underage person when the provider knew or should have known the person was underage; and 2) the alcohol was a substantial factor in causing the third party's injury. ¶19 Here, it is undisputed that Mary Anne provided the vodka to Gregory and that Gregory later shared it with Craig. No one has identified any fact tending to show that Craig was present Gregory. the at the time of Mary Anne's provision of alcohol to No one has asserted that Craig contributed money to purchase of the vodka. See Miller v. Thomack, 210 Wis. 2d 650, 656-57, 563 N.W.2d 891 (1997)(holding that one who contributes money toward purchase of alcohol beverages for consumption by a person known to be underage, "procures" within 8 No. the meaning of Wis. Stat. § 125.035(4)).3 facts suggesting that Craig asked 02-0980 No one has pointed to his friend Gregory to get vodka from his mother or otherwise participated in any way in Mary Anne's provision of the alcohol to Gregory. In short, nothing any in the record suggests that Craig had role whatsoever in Mary Anne's provision of alcohol to Gregory.4 conclude that Craig is a third party with respect to We that transaction. ¶20 It is also undisputed that the alcohol substantial factor in causing Craig's death. was a Therefore, the exception to immunity under Wis. Stat. § 125.035(4)(b) applies. ¶21 This consistent immunity. interpretation with our prior of cases Wis. Stat. applying § 125.035(4) is the exception to In Meier, 241 Wis. 2d 605, ¶2, we held that a person 3 In Miller v. Thomack, 210 Wis. 2d 650, 660 n.11, 563 N.W.2d 891 (1997), we specifically declined to address the issue presented here whether an underage consumer of alcohol can be a third party for purposes of the immunity exception in Wis. Stat. § 125.035(4)(b) as it was not fully argued by the parties. In Miller we held only that one "who contributes money with the intent of bringing about the purchase of alcohol beverages for consumption by an underage person whom the person knows, or should know, is under the legal drinking age, procures alcohol beverages for the underage person within the meaning of Wis. Stat. §§ 125.07(1)(a)1. and 125.035(4)." Id. at 656. 4 Although the Andersons' complaint alleged that Mary Anne Brasure purchased the alcohol and provided it "to Gregory Brasure and/or Craig P. Anderson," the parties have not asserted that material factual disputes exist on the issue of Craig's involvement in Mary Anne's provision of alcohol to her son Greg, thus conceding Craig's nonparticipation in that act. See Anderson v. Am. Family Mut. Ins. Co., 2002 WI App 31, ¶12 n.8, 259 Wis. 2d 413, 422, 655 N.W.2d 531. 9 No. 02-0980 who provides alcohol to an underage drinker cannot claim thirdparty status for purposes of the exception to immunity when he himself is injured by the actions of the intoxicated underage drinker. Id. Meier, 19, spent an evening drinking beer at a bar with two companions, one of whom was also 19. and paid for a number drinkers. of the drinks shared Meier ordered by the trio of After leaving the bar in a car driven by the other 19-year-old, the group was involved in a car accident in which Id., ¶¶3-8. Meier was seriously injured. ¶22 Meier Meier sued the bar and the driver. had paid for and otherwise We held that since procured alcohol for his companion, the underage drinker/driver, which was a substantial factor in causing his own injury, he was a party to the transaction that provided the alcohol to the underage person and thus did not qualify as a third party under the statute. ¶13. Id., We held in Meier: "It is difficult to imagine a class of individuals that the legislature would have more likely intended to exclude from qualifying as a 'third party' than those persons involved in procuring alcohol for ultimately injures another party." ¶23 The only similarity the underage drinker who Id. between Craig and the injured plaintiff in Meier is that both young men consumed alcohol prior to their injuries. But there is a key difference: Meier procured alcohol for the underage drinker who later caused his (Meier's) alcohol injury; for transactional in contrast, Gregory. focus of As here, we stated § 125.035(4)(b) 10 Craig is did in the not procure Meier, "[t]he provision of No. alcohol to underage persons." Id., ¶24. 02-0980 It was because Meier was involved in the illegal transaction by which alcohol was provided to his underage friend, not because they consumed alcohol together, that he was precluded from suing under the exception as an injured third party. ¶24 cases Alcohol immunity issues may well arise most often in of accidents caused by intoxication, but neither intoxication nor a resultant accident is statutorily necessary for the exception to immunity to apply. The statute requires only the knowing provision of alcohol to an underage person, and an injury to a third party caused by the alcohol. language does injuries. not limit the exception to The statutory certain types of The fact that Craig died as a result of alcohol consumption does not itself take this case outside of the exception to immunity. ¶25 drinker In addition, Craig's status as a companion underage does not dictate whether he qualifies third party under Wis. Stat. § 125.035(4)(b). as an injured The statute does not limit third-party status by age, condition of sobriety, or separation of circumstance from the alcohol consumption.5 5 It Mary Anne cites Doering v. WEA Insurance Group, 193 Wis. 2d 118, 142-43, 532 N.W.2d 432 (1995), for the proposition that Wis. Stat. § 125.035 disallows a suit by an underage drinker. Doering is not applicable here. The case involved a claim against a tavern by a motorist who was injured by an adult intoxicated driver who had been drinking at the tavern. The injured motorist lodged an unsuccessful equal protection challenge to the immunity statute. Doering specifically addressed the "single issue" of "whether sec. 125.035, Stats. 1991-92, violates the equal protection clause. . . ." Id. at 124. The case did not address the issue of whether an underage 11 No. 02-0980 requires only that the injured person be a third party to the defendant/provider's provision of alcohol to an underage person, and that the alcohol so provided is a substantial factor in causing the injury. Craig's age and complicity in his own intoxication are factors for the comparison of negligence, but they do not determine the applicability of the exception to immunity under Wis. Stat. § 125.035(4)(b). ¶26 Corp., Mary Anne argues that Kwiatkowski v. Capitol Indemnity 157 Wis. 2d 768, 461 N.W.2d 150 (Ct. App. 1990), unequivocally rules out those who consume alcohol from thirdparty status. In Kwiatkowski, the court of appeals affirmed the circuit court's dismissal of a lawsuit alleging negligence in providing alcohol Wis. 2d at 771. underage to an underage person. Kwiatkowski, 157 Raymond Kwiatkowski, an "obviously intoxicated drinker," was served alcohol by Entertainment Center in Okauchee, Wisconsin. the Red Lion His companion, Amy Pederson, also bought him alcohol while they were at the tavern. Kwiatkowski and Pederson left the Red Lion in an automobile with Kwiatkowski at the wheel; an accident Kwiatkowski and Pederson were injured. ¶27 Kwiatkowski Pederson. sued the Red took place in which Id. Lion, its owner, and The court of appeals framed the issue as "whether the statute contemplates a cause of action to a minor consumer of alcohol beverages where a third party [there, Pederson] is drinker can be a third party for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(b). 12 No. 02-0980 injured or whether the cause of action is limited to only the injured third party." Id. at 775. The court examined the statute and concluded that it was ambiguous because it "does not expressly grant a cause of action to either category of claimants," but merely "set[s] out when the immunity applies and when it does not." ¶28 Id. The court in Kwiatkowski then turned to the history of the statute and concluded that the statute was in derogation of the common law because it was enacted after two decisions of this court6 that altered the common law of immunity by permitting a cause of action against providers of alcohol who serve alcohol to minors where the minor's consumption was a cause of injury to a third party. Id. at 776-77. The court of appeals held: The legislature in sec. 125.035(4)(b), Stats., has not sanctioned by clear, unambiguous and peremptory language a cause of action against a provider by a minor plaintiff whose injuries, at least in part, result from his own consumption of alcohol beverages. Absent such an unequivocal statement from the legislature or a further limitation of common law immunity by the supreme court, the present common law rule of nonliability still applies in such a case. Id. at 777. ¶29 Mary controlling Anne asserts precedent, and that Kwiatkowski therefore Craig, is a clear and consumer of alcohol, cannot be a third party for purposes of the exception to immunity. The premise Mary Anne's reliance on Kwiatkowski is misplaced. upon which it relied that 6 the statute is in Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985); Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984). 13 No. 02-0980 derogation of the common law was subsequently rejected by our decision in Meier. ¶30 enactment In Meier, of Wis. we recapitulated Stat. § 125.035, the and, history in of the particular, the statute's relationship to this court's decisions in Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984), and Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985). Wis. 2d 605, ¶¶30-35. For decades, Meier, 241 Wisconsin common law recognized no liability on the part of sellers of alcohol for damages arising from the acts of an intoxicated person. See, e.g., Farmers Mut. Auto. Ins. Co. v. Gast, 17 Wis. 2d 344, 117 N.W.2d 347 (1962). In Sorensen, 119 Wis. 2d at 629, however, we held that a third party injured by an intoxicated minor could sue a provider who negligently sold intoxicating beverages to a person the seller knew or should have known was underage when the consumption of alcohol was a cause of the accident. In the following term we extended the Sorensen rule to social hosts who serve alcohol to minors where the minor's cause of injury to a third party. consumption was a See Koback, 123 Wis. 2d at 275. ¶31 enacting The legislature responded to Sorensen and Koback by statutory provision of effectively alcohol codifying Wis. 2d 605, ¶33. exception to immunity from beverages, the old liability Wis. arising Stat. common-law rule. § from the 125.035(2), Meier, 241 At the same time, the legislature adopted the immunity contained 14 in subsection (4)(b), which No. 02-0980 permits a cause of action in situations like those present in Sorensen and Koback. Id., ¶34. Thus, we said in Meier: [b]ecause the legislature drafted § 125.035 with Sorensen and Koback in mind and because the statute tracks the language of the case law, we conclude that the statute is not one in derogation of the common law, but indeed is one that attempted to codify the common law as it existed in 1985. Id. ¶32 Although this passage from Meier is enough to rebut Mary Anne's reliance on Kwiatkowski, a footnote to our decision in Meier forecloses her argument definitively. We recognized in Meier that our interpretation ran contrary to conflicting court of appeals' discussions, in Kwiatkowksi, 157 Wis. 2d at 776-77, and Miller, 204 Wis. 2d at 263, regarding the immunity statute's relationship to the common law. n.16. Meier, 241 Wis. 2d 605, ¶34 Therefore, to avoid any possible confusion on the issue, we specifically held: "To the extent that the court of appeals discussions [regarding statutes in derogation of the common law] in Miller and Kwiatkowski are inconsistent with this opinion, such discussions are no longer valid precedent." ¶33 Although Kwiatkowski's Id. interpretation of the immunity statute's relationship to the common law was erroneous, the result in the case would have been the same interpretation of the statute in Meier and here. under our The facts in Kwiatkowski were significantly different from the facts in this case. Craig, like Kwiatkowski, consumed the alcohol that was a substantial factor in causing his injury. Kwiatkowski, however, could not claim third-party status to the transaction by which 15 No. the alcohol tavern was which had provided, because provided alcohol companion, Pederson. his suit was directly 02-0980 against to him and Kwiatkowski, 157 Wis. 2d at 771. the his Here, the Andersons are suing Mary Anne, who provided alcohol directly to her son Gregory, but not to Craig; the Andersons' son Craig was a third party to Mary Anne's provision of alcohol to the exception to knowing provision of liable for Gregory. ¶34 We have immunity is intended alcohol to previously underage to 2d at discourage persons third-party injuries. Wis. observed by that the making providers Meier, 241 Wis. 2d 605, ¶27; Miller, 210 668-69. A provider has a defense to the applicability of the exception if he or she was actively misled about the recipient's age. The statute restores immunity if the facts establish all of the following: 1. The underage person falsely represents that he or she has attained the legal drinking age. 2. The underage person supports the representation with documentation that he or she has attained the legal drinking age. 3. The alcohol beverages are provided in good faith reliance on the underage person's representation that he or she has attained the legal drinking age. 4. The appearance of the underage person is such that an ordinary and prudent person would believe that he or she had attained the legal drinking age. Wis. Stat. § 125.035(4)(b)1.-4. ¶35 This defense to the immunity exception further demonstrates that the focus of the statute is on the transaction 16 No. 02-0980 between the provider and the underage person. By restoring the provider's facts statutory immunity where the establish deception by the underage person, the legislature has opted to permit civil liability to injured third parties only where the provider knew or should have known that he or she was directly violating the state drinking law. ¶36 Such is the case here. Accordingly, we conclude that an underage drinker who is injured or dies as a result of the consumption of alcohol that was illegally provided to a companion underage drinker is an injured third party for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(b). The exception applies under these circumstances, and the Andersons may proceed with their suit against Mary Anne for the death of their son, Craig, arising out of Mary Anne's provision of alcohol to her underage son, Gregory. While Craig's own consumption will bear upon his contributory negligence, it does not affect his status as a third party to Mary Anne's provision of alcohol to Gregory for purposes of the statutory exception to immunity. By the Court. The decision affirmed. 17 of the court of appeals is No. 1 02-0980

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