William C. Brown v. Muskego Norway School District Group Health Plan

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 16, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1799 Cir. Ct. No. 2016CV353

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WILLIAM C. BROWN AND BETH A. BROWN,

PLAINTIFFS-COUNTER
DEFENDANTS-APPELLANTS,

V.

MUSKEGO NORWAY SCHOOL DISTRICT GROUP HEALTH PLAN,

DEFENDANT-COUNTER CLAIMANT-RESPONDENT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: WILLIAM DOMINA, Judge. Affirmed in part; reversed in
part and cause remanded with directions.

Before Reilly, P.J., Gundrum and Kessler, JJ.

¶1 REILLY, P.J. William C. Brown was injured in a motorcycle
accident. Brown declined worker’s compensation coverage and wanted coverage
No. 2018AP1799

provided by his own health insurance policy. The circuit court found that Brown
was in the course of his employment when he was injured and further found that
Brown’s health insurance policy expressly excluded coverage as benefits were
available to Brown under the worker’s compensation law. We affirm.

¶2 On November 4, 2015, Brown suffered significant injuries in a
serious motorcycle accident. At the time, Brown was a salaried employee of
Gardner Pet Group, which had two plant locations in Wisconsin: one in Juneau
and one in West Bend. Brown’s office was located at the West Bend location, but
he was often required at both locations. The morning of the accident, Brown
attended a meeting at the Juneau plant and remained at the Juneau plant until
approximately 2:00 p.m.

¶3 The accident occurred at approximately 2:47 p.m. as Brown was
traveling east on Highway 33, which is the most direct route to his office at the
West Bend plant. Brown claims that he left the Juneau plant to enjoy a motorcycle
ride on a beautiful day and to have lunch as he had already put in an eight-hour
day. He explained that he “just started meandering” on the roads and at some
point he ended up back on Highway 33. When asked whether he was planning on
going back to his office, Brown responded, “I don’t know to be honest with you. I
don’t know if I was…. The concept would be let’s just go for a ride.”

¶4 Five days after the accident, Gardner Pet Group submitted a claim to
the Wisconsin Department of Workforce Development’s Worker’s Compensation
Division, indicating that Brown was “driving from one work location to another”
when the accident occurred. Thereafter, Travelers Property Casualty Company of
America (Travelers)—Gardner Pet Group’s worker’s compensation carrier—
opened a file and began its claims investigation. Travelers completed its

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investigation on November 12, 2015, and determined that Brown’s claim was
compensable and that “[t]he accident arose out of and in the course of [Brown’s]
employment.” When Brown discovered the claim had been filed, he refused the
worker’s compensation checks he received from Travelers and instructed Gardner
Pet Group to withdraw the claim,1 arguing that he was not working at the time of
his accident.

¶5 Muskego Norway School District Group Health Plan (the Plan)—
Brown’s health insurer—also investigated whether it owed coverage and sent a
standard questionnaire to Brown, which included the question, “Was treatment
required as the result of a work related Injury or Illness,” and the box was marked,
“No.” The form was signed on February 11, 2016, by Brown’s attorney. Relying
on the questionnaire, the Plan paid $482,099.61 for Brown’s medical care and
treatment as a result of the accident.

¶6 Brown filed this action on February 22, 2016, against the driver and
insurer of the vehicle that hit him, alleging negligence.2 The amended complaint
also named the Plan as a subrogated party for the health care payments that it
made and Travelers in the event it made payments. On July 17, 2017, the Plan
filed an amended answer and counterclaim seeking a declaration under WIS. STAT.

1
The first indication that Brown did not want his claims paid under his worker’s
compensation coverage was a November 11, 2015 e-mail from Gardner Pet Group to Travelers,
which stated that “Brown would like to put the workers comp claim on hold for now. He has an
attorney and will be going down another avenue at this point.” Brown’s personal injury attorney
also sent an e-mail to Gardner Pet Group on November 13, 2015, stating that “Brown is not
making a workers compensation claim at this time, and we acknowledge that the company has
offered him the opportunity to do so. In the event that a claim has been made to your company’s
workers compensation carrier, please rescind that claim.”
2
The other driver and her insurer were dismissed from the suit under a settlement on
January 23, 2017.

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§ 806.04 (2017-18)3 that the Plan was not obligated to pay any claims arising from
the accident pursuant to the Plan language as Brown was covered by worker’s
compensation benefits. The circuit court agreed and granted the Plan’s motion for
summary judgment and entered a judgment in the amount of $514,551.28, which
included costs and interest against Brown in favor of the Plan. Brown appeals
from both the order granting summary judgment as well as the judgment awarding
interest and costs.

DISCUSSION

¶7 We review a circuit court’s grant of summary judgment utilizing the
same methodology as the circuit court. Green Spring Farms v. Kersten, 136
Wis. 2d 304, 314-16, 401 N.W.2d 816 (1987). “[S]ummary judgment is
appropriate when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” M & I First Nat’l Bank v. Episcopal
Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995);
see also WIS. STAT. § 802.08(2). Summary judgment presents a question of law
that we review de novo. M & I First Nat’l Bank, 195 Wis. 2d at 497.
Interpretation of an insurance contract is a question of law we review de novo.
Varda v. Acuity, 2005 WI App 167, ¶7, 284 Wis. 2d 552, 702 N.W.2d 65.

Plan Language

¶8 We begin with the plain language of the policy. Section 6 of the
Plan indicates that “[t]he Plan does not provide benefits”

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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[f]or any … injury arising out of and in the course of
employment if benefits are available under any Workers’
Compensation Act or other similar law…. This exclusion
also applies whether or not you claim the benefits or
compensation. It also applies whether or not you recover
from any third party.

Further, under general provisions, the Plan provides that

All money paid or owed by Workers’ Compensation for
services provided to a Member shall be paid back by, or on
behalf of, the Member to the Plan if the Plan has made or
makes payment for the services received.

Similarly, under the “Right of Recovery,” the Plan provides: “Whenever payment
has been made in error, the Plan will have the right to recover such payment from
you ….” To determine whether the Plan’s exclusion applies, we apply
Wisconsin’s worker’s compensation law to the facts of this case.

Worker’s Compensation Law: “Traveling Employees”

¶9 WISCONSIN STAT. § 102.03(1)(c) of the Worker’s Compensation Act
provides that where an employee sustains an injury, an employer may only be held
liable for injuries that occur while “the employee is performing service growing
out of and incidental to his or her employment.” Specifically, § 102.03(1)(f)
creates a presumption of workers compensation coverage for traveling employees,
providing in pertinent part that “[l]iability under this chapter shall exist against any
employer only where the following conditions concur:”

(f) Every employee whose employment requires the
employee to travel shall be deemed to be performing
service growing out of and incidental to the employee’s
employment at all times while on a trip, except when
engaged in a deviation for a private or personal purpose.
Acts reasonably necessary for living or incidental thereto
shall not be regarded as such a deviation. Any accident or
disease arising out of a hazard of such service shall be
deemed to arise out of the employee’s employment.

(Emphasis added.)

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¶10 A deviation for a personal purpose that is reasonably necessary for
living or incidental thereto is known as the “personal comfort doctrine.”
Recognized first in Milwaukee Western Fuel Co. v. Industrial Commission, 159
Wis. 635, 150 N.W. 998 (1915), our supreme court explained that the personal
comfort doctrine was devised

to cover the situation where an employee is injured
while taking a brief pause from his labors to minister to the
various necessities of life. Although technically the
employee is performing no services for his employer in the
sense that his actions do not contribute directly to the
employer’s profits, compensation is justified on the
rationale that the employer does receive indirect benefits in
the form of better work from a happy and rested workman,
and on the theory that such a minor deviation does not take
the employee out of his employment.

Marmolejo v. DILHR, 92 Wis. 2d 674, 678, 285 N.W.2d 650 (1979) (quoting
Comment, Workmen’s Compensation: The Personal Comfort Doctrine, 1960 WIS.
L. REV. 91, 91). The court further explained that “[e]mployees who, within the
time and space limits of their employment, engage in acts which minister to
personal comfort do not thereby leave the course of employment, unless the extent
of the departure is so great that an intent to abandon the job temporarily may be
inferred,” or if “the method chosen is so unusual and unreasonable that the
conduct cannot be considered an incident of the employment.” Marmolejo, 92
Wis. 2d at 680 (citation omitted).

¶11 Our supreme court addressed the personal comfort doctrine in
Dibble v. DILHR, 40 Wis. 2d 341, 346, 161 N.W.2d 913 (1968), and concluded
that in order for the presumption of coverage for a traveling employee to not
apply, “there must be a finding of two essential facts …. There must be (1) a
deviation by the employee from his business trip, and (2) such deviation must be
for a personal purpose not reasonably necessary for living or incidental thereto.”

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¶12 Brown first argues that WIS. STAT. § 102.03(1)(f) is inapplicable to
him as it is known as the “traveling salesman” statute and applies only to
“employees who are living and working away from home.” We disagree as the
statute contains no such limitation, and we conclude that § 102.03(1)(f) is not
limited to employees living and working away from home.4 The statute applies to
“[e]very employee whose employment requires the employee to travel,” and
Brown was required to “travel” between the Juneau plant and the West Bend plant
during the workday.

¶13 As WIS. STAT. § 102.03(1)(f) is applicable to Brown, the next
question is whether the evidence in this case overcame the presumption that
Brown “shall be deemed to be performing service growing out of and incidental to
the employee’s employment at all times while on a trip.” Sec. 102.03(1)(f). This
involves determining whether the accident occurred during a deviation from
Brown’s employment and, if so, whether that deviation was for a personal purpose
not falling under the personal comfort doctrine. Brown argues that the evidence
establishes that the presumption in § 102.03(1)(f) was rebutted as he “was taking a
detour for personal objectives at the time of the accident.” We disagree.

¶14 The burden of proving a personal deviation under WIS. STAT.
§ 102.03(1)(f) is on the party asserting the deviation. CBS, Inc. v. LIRC, 219

4
See Lager v. DILHR, 50 Wis. 2d 651, 659, 185 N.W.2d 300 (1971) (applying WIS.
STAT. § 102.03(1)(f) to a car salesman traveling to attempt to sell car to customer after hours),
Bergner v. Industrial Comm’n, 37 Wis. 2d 578, 589-90, 155 N.W.2d 602 (1968) (applying
statute to an employee delivering a television to a customer in Michigan), Andreski v. Industrial
Comm’n, 261 Wis. 234, 235-37, 52 N.W.2d 135 (1952) (applying statute to sheriff who was on
the road for work); see also Neese v. State Med. Soc’y, 36 Wis. 2d 497, 504, 153 N.W.2d 552
(1967) (“This court has generally adopted a liberal construction of the workmen’s compensation
statutes.”).

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Wis. 2d 564, 579, 579 N.W.2d 668 (1998). The presumption found in
§ 102.03(1)(f) is strong, as our supreme court explained:

Under this section every employee whose employment
requires him to travel is to be deemed while so engaged to
be performing service growing out of and incidental of his
employment. This applies at all times while he is on a trip,
and any injury occurring during such employment shall be
deemed to arise out of his employment. It would seem to
follow that if all that can be learned about the injury from
the circumstances and from the testimony of individuals
would leave the matter within the realm of speculation,
then he must be deemed to be within the scope of his
employment. The inference arising from the employment
controls unless there is evidence which overpowers that
inference.

Hansen v. Industrial Comm’n, 258 Wis. 623, 625, 46 N.W.2d 754 (1951)
(emphasis added); see also Andreski v. Industrial Comm’n, 261 Wis. 234, 243,
52 N.W.2d 135 (1952). The circuit court found Hansen persuasive, determining
that there was a presumption of continuing employment in this case under
§ 102.03(1)(f) and the evidence in the record was insufficient to rebut that
presumption as Brown’s testimony “only creates speculation.” We agree.

¶15 According to Brown, he was on a personal excursion at the time of
the accident, as he testified:

At that point I hadn’t had lunch, I had already had eight
hours of employment, and so the whole purpose of me
getting up that early in the day was so I could go for a bike
ride….

And so clearly for—in my mind I was—I needed lunch,
but I was going to at the same time, because of the warmth
of the day, kind of like the last day of the year, go for a
ride. And that’s what I started to do.

Brown’s assertion that he was on a “personal excursion” is not enough as he also
must show that the deviation was for a personal purpose “not reasonably necessary
for living or incidental thereto.” Dibble, 40 Wis. 2d at 346. The circuit court

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noted Brown’s deposition testimony in which he testified that he did not know if
he planned to go back to the office and further stated, “Let me clarify one thing. I
think I said earlier in the day in this deposition that I wasn’t sure if I was going to
go back. So it wasn’t like I’m done for the day, I’m checking out, I can say that.”
In an answer to an interrogatory, Brown stated that “I was riding my motorcycle to
get lunch by myself when this incident took place.” In a motion, Brown’s counsel
stated that “Brown left Gardner’s work premises on his motorcycle to have a lunch
break.” Travelers’ claim note states that Brown “had left McDonald’s after just
visiting a plant and made a decision to take his motorcycle out for a ride because it
was a beautiful day.” In another part of the record, Brown’s counsel referred to
him leaving Gardner’s property “to have a break for lunch.” Brown’s deviation
for a lunch break or for a motorcycle ride on the way back to West Bend does not
fall within a deviation for a personal purpose “not reasonably necessary for living
or incidental thereto.”

¶16 In sum, there is no evidence that overpowers the presumption of
continued employment found in WIS. STAT. § 102.03(1)(f). Brown was required
to travel between the two work locations on a regular basis as part of his
employment and the most direct route between those two locations was Highway
33, which runs between the Juneau and West Bend plants. Although Brown
argues he took a circuitous route when he left the Juneau plant to perhaps go for a
ride or to get lunch, the facts indicate that when the accident occurred he was back
on his normal work route on Highway 33 heading in the direction of the West

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Bend plant.5 There does not appear to be any evidence in the record that Brown’s
employer was not expecting him back in the office on the day of the accident, 6 and
by all accounts his employer believed he had a valid worker’s compensation
claim. Brown’s own testimony also did not confirm that he was not heading back
to his office or that he did not plan to return to work that day.7 Accordingly, we
cannot conclude that Brown met his burden of proving a personal deviation “not
reasonably necessary for living or incidental thereto” that overpowers the
presumption under § 102.03(1)(f).

¶17 Brown argues that cases have held that employees are not entitled to
worker’s compensation benefits for injuries sustained during a lunch break, citing
to Marmolejo, 92 Wis. 2d at 683. Marmolejo is not on point. In Marmolejo, the

5
See Lager, 50 Wis. 2d at 661 (“It is clear, as a matter of law, that, in the event a
salesman commences travel in the course of his employment and subsequently deviates from that
employment but later resumes his route which he would have to follow in the pursuance of his
employer’s business, the deviation has ceased and he is performing services incidental to and
growing out of his employment.”); Richardson v. Industrial Comm’n, 1 Wis. 2d 393, 398, 84
N.W.2d 98 (1957) (“We do not say that the service to the employer must be the sole cause of the
journey, but at least it must be a concurrent cause…. If the work of the employee creates the
necessity for travel, he is in the course of his employment, though he is serving at the same time
some purpose of his own.” (citation omitted)); Hansen v. Industrial Comm’n, 258 Wis. 623,
626-27, 46 N.W.2d 754 (1951) (“The provisions of the statute just referred to keep the salesman
within the declared scope of employment while doing the usual, legitimate things incidental to
daily existence. During the period of being at ease, upon leaving his last customer, he is not
required to seek immediate seclusion in a hotel and remain away from human beings at the risk of
being charged with deviating from his employment. Nor is he required to eat his evening meal at
the restaurant nearest to the spot where he takes leave of his last customer on a particular day.”).
6
An internal e-mail between employees dated November 12, 2015, indicates that
“[Brown] was driving from the Juneau plant to the West Bend plant at the time of the accident.”
7
Two days after the accident, Brown was interviewed by a case manager at the hospital,
and he informed her that he was “traveling from one job site to another.” Brown now claims no
recollection of his conversation with the case manager and insists he was not headed to the West
Bend plant. Brown argues that the statement is inadmissible hearsay; however, he does not brief
this issue. Since, as the Plan explained, the circuit court did not rely on Brown’s alleged
statement to the case manager in making its decision, we will address the issue no further.

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employee was an hourly employee with set hours, including a half hour lunch
break that he was not compensated for. Id. at 676. Marmolejo’s employment did
not require him to leave the employer’s premises at any time, and he could only
perform his job assignment on the premises. Id. at 676, 682. Marmolejo was
injured in an accident when he left the employer’s premises to get lunch during his
set lunch period. Id. at 676-77. Marmolejo did not involve WIS. STAT.
§ 102.03(1)(f).

¶18 In contrast, Brown was a salaried employee who was not required to
punch a time clock or inform his employer of his comings and goings. There was
no set lunch period, and the accident occurred during the hours of a typical
workday. Although he testified that he had already worked for eight hours on the
day of the accident, he also testified that Gardner Pet Group was a start-up
company, and he often worked long hours. Brown was required to leave his
employer’s premises as part of his job performance and he was required to travel
between the Juneau plant and his office in West Bend. Brown has not met his
burden to rebut the presumption under WIS. STAT. § 102.03(1)(f).

¶19 There is no dispute that Brown had worker’s compensation benefits
“available” to him as Travelers determined his claim was compensable and began
issuing him checks. It was only at Brown’s direction that the claim file was closed
and the checks stopped. Travelers never denied worker’s compensation benefits,
and Brown is not being forced to file a worker’s compensation claim as the Plan
explicitly provides: “This exclusion also applies whether or not you claim the
benefits or compensation.” The court properly granted summary judgment to the
Plan.

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¶20 Brown also argues that the circuit court’s ruling must be reversed as
there is “no precedent or authority to support the Plan’s counterclaim” and that it
is “a crafty maneuver to avoid Wisconsin’s well-known ‘made whole’ rule of
subrogation, a maneuver for which there is absolutely no authority.” See Rimes v.
State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 271-72, 316 N.W.2d 348
(1982). The Plan disagrees, arguing that its counterclaim is recognized under the
plan language as well as Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733,
469 N.W.2d 203 (Ct. App. 1991).

¶21 In Tesmer, James Tesmer was injured in a plane crash, and his
worker’s compensation carrier denied coverage. Id. at 736. Tesmer’s health
insurer sought to intervene in the worker’s compensation proceedings. Id. The
request to intervene was denied, and the insurer sought a declaratory judgment that
WIS. STAT. § 102.30(7)(b), which precludes nonindustrial insurers from
participating in worker’s compensation proceedings, is unconstitutional. Tesmer,
161 Wis. 2d at 736. In upholding the constitutionality of the statute, this court
explained that the insurer had the right to proceed against its insured for
reimbursement, and as such, the law was constitutional. Id. at 738-39; see also
Udelhofen v. John Hancock Mut. Life Ins. Co., 128 Wis. 2d 216, 220, 381
N.W.2d 579 (Ct. App. 1985).8 The circuit court properly granted summary
judgment on the Plan’s counterclaim.

8
The Wisconsin Practice Series on Workers’ Compensation Law also explains:

(continued)

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¶22 Brown next argues the voluntary payment doctrine. According to
Brown, the law does not require him to file a claim for worker’s compensation,
and he should not have to divest funds that the Plan voluntarily made to him. In
MBS-Certified Public Accountants, LLC v. Wisconsin Bell, Inc., 2012 WI 15,
¶31, 338 Wis. 2d 647, 809 N.W.2d 857 (alteration in original; citation omitted),
our supreme court “described the nature and purpose of the voluntary payment
doctrine as follows: ‘[M]oney paid voluntarily, with knowledge of all the facts,
and without fraud or duress, cannot be recovered merely on account of ignorance
or mistake of the law.’” Brown argues that the Plan voluntarily submitted
payments for Brown’s medical care and “[n]ot once did the Plan challenge those
payments before making them.”

Many employee claims for medical expenses will be paid by
health insurers, even if the injuries are work-related and should
be paid by the workers’ compensation insurance carrier. In some
instances, the health insurer pays because it does not realize the
accident or disease was work-related, and in other cases, the
claims will be paid by the health insurer because the workers’
compensation carrier disputes that the injury was work-related
(or the employer directs the employee to file the claim under the
health insurance policy).

In either case, the health insurer generally has the right to
recoup the payments, because health insurance policies exclude
payments of medical expenses covered by the workers’
compensation carrier.

….

Despite being unable to intervene in a workers’ compensation
proceeding directly, group health carriers can bring a separate
claim in circuit court to recover payments against the employee
through a contractual reimbursement clause in the group health
policy.

17 Wis. Prac., Workers’ Comp. Law § 20:5 (March 2019 Update) (citation omitted).

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¶23 We agree with the Plan that the voluntary payment doctrine is
inapplicable. First, Brown failed to cite any case law suggesting that the doctrine
is applicable under the circumstances of this case where the plain language of a
policy includes provisions for recovery of funds under certain circumstances.
Further, the Plan relied on the questionnaire it sent Brown where he represented
that the accident was not a work-related injury; thus, at the very least, the Plan
paid Brown’s medical claims without “knowledge of all the facts.” Finally, the
payments that the Plan is attempting to recover from Brown were not made
directly to Brown; the payments were made to Brown’s health care providers. See
Wegner v. West Bend Mut. Ins. Co., 2007 WI App 18, ¶23, 298 Wis. 2d 420, 728
N.W.2d 30 (2006).

¶24 Finally, Brown argues that the circuit court improperly awarded
interest and costs to the Plan. Brown argues that the circuit court erred in
awarding interest as Brown was required by the court to retain the funds in a trust
account that could not bear interest, thereby making the award of interest “patently
unfair, unjust, and erroneous.” In City of Merrill v. Wenzel Bros., Inc., 88 Wis.
2d 676, 697, 277 N.W.2d 799 (1979), our supreme court explained that
“[p]rejudgment interest is awarded where the amount of damages is determinable,
either because the damages are liquidated or because there is a reasonably certain
standard of measurement.”

¶25 Brown does not argue to this court that the amount of damages was
not “determinable”; instead, he claims that Brown “did not at any point possess the
disputed funds since they were held in trust pursuant to court order. Thus, [Brown
was] completely unable to ‘tender’ any amount of damages to the Plan in order to
avoid the accrual of interest.” See Beacon Bowl, Inc. v. Wisconsin Elec. Power
Co., 176 Wis. 2d 740, 777, 501 N.W.2d 788 (1993). Beacon Bowl does not

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preclude the result in this case; it merely explains the reasoning for the rule.
Brown presents no case, and we could find none, where the fact that funds were
held in a trust account precluded the award of prejudgment interest. We agree
with the Plan that Brown could have taken certain actions to stop the accrual of
interest, including tendering to the Plan the funds that were held in trust—with
permission of the circuit court—or requesting that Travelers reimburse the Plan
directly. Accordingly, we conclude that the circuit court did not err in awarding
interest as the amount of damages was determinable.

¶26 Brown also challenges the court’s award of costs to the Plan. Citing
WIS. STAT. § 814.04, Brown objects to “certain items in the bill of costs, such as
costs for travel [by the attorneys] to and from court proceedings and charges for
attorney’s fees, on the grounds that the costs statute does not allow for these types
of costs.” The bill of costs indicates that the Plan requested, and the court granted,
$500 in attorney fees and $245.13 in mileage and toll fees, which we assume are
the costs to which Brown objects. The Plan makes no argument as to whether the
costs were properly awarded, except to say that they were.

¶27 WISCONSIN STAT. § 814.04(1)(a) addresses attorney fees and
provides:

(a) When the amount recovered or the value of the property
involved is greater than the maximum amount specified in
[WIS. STAT. §] 799.01(1)(d) [$10,000 or less], attorney fees
shall be $500; when it is equal to or less than the maximum
amount specified in [§] 799.01(1)(d), but is $1,000 or more,
attorney fees shall be $300; when it is less than $1,000,
attorney fees shall be $100. In all other cases in which
there is no amount recovered or that do not involve
property, attorney fees shall be $300.

Section 814.04(2) also allows for additional costs under certain circumstances:

(2) DISBURSEMENTS. All the necessary disbursements
and fees allowed by law; the compensation of referees; a

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reasonable disbursement for the service of process or other
papers in an action when the same are served by a person
authorized by law other than an officer, but the item may
not exceed the authorized sheriff’s fee for the same service;
amounts actually paid out for certified and other copies of
papers and records in any public office; postage,
photocopying, telephoning, electronic communications,
facsimile transmissions, and express or overnight delivery;
depositions including copies; plats and photographs, not
exceeding $100 for each item; an expert witness fee not
exceeding $300 for each expert who testifies, exclusive of
the standard witness fee and mileage which shall also be
taxed for each expert; and in actions relating to or affecting
the title to lands, the cost of procuring an abstract of title to
the lands. Guardian ad litem fees shall not be taxed as a
cost or disbursement.

¶28 Brown’s argument on the issue of the circuit court’s award of $500
in attorney fees under WIS. STAT. § 814.04(1)(a) is conclusory and undeveloped,
see State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992);
nevertheless, we see no concern with the $500 in attorney fees under the plain
reading of § 814.04(1)(a) as the amount recovered in this case was well over the
maximum amount specified in WIS. STAT. § 799.01(1)(d). On the issue of mileage
for attorneys’ travel to and from court hearings, however, we note that those costs
are not specified under the statute (while mileage for expert witnesses is allowed).
Our supreme court explained:

The terms “allowable costs” or “taxable costs” have a
special meaning in the context of litigation. The right to
recover costs is not synonymous with the right to recover
the expense of litigation. This right is statutory in nature,
and to the extent that a statute does not authorize the
recovery of specific costs, they are not recoverable....
Many expenses of litigation are not allowable or taxable
costs even though they are costs of litigation.

Thus, any award of a “cost” which is not specifically
authorized by a Wisconsin statute constitutes an error of
law that must be reversed.

Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 147, 549 N.W.2d
714 (1996) (citation omitted); see also State v. Foster, 100 Wis. 2d 103, 106, 301

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No. 2018AP1799

N.W.2d 192 (1981). The supreme court rejected this court’s statutory
interpretation in Zintek v. Perchik, 163 Wis. 2d 439, 476-77, 471 N.W.2d 522 (Ct.
App. 1991), where we considered § 814.04(2) with WIS. STAT. § 814.036 (the
omnibus costs provision), concluding that when read together the statutes grant the
circuit court nearly absolute discretion as to what costs may be taxed against a
party. Kleinke, 202 Wis. 2d at 149. The court in Kleinke concluded instead that

[t]he omnibus costs provision simply grants a trial court the
discretion to allow costs even “if a situation arises in which
the allowance of costs is not covered by [WIS. STAT.
§§] 814.01 to 814.035.” The omnibus costs provision,
therefore, only gives the court discretion as to when it may
allow costs, not as to what costs may be allowed. Neither
the omnibus cost provision nor the catch-all provision in
[§] 814.02 grants the trial court the power to allow costs
which are not explicitly authorized by statute.

Kleinke, 202 Wis. 2d at 149 (third emphasis added; citations omitted). As
§ 814.04(2) does not explicitly allow disbursements for mileage for travel to and
from court proceedings by attorneys and the Plan presents no additional statutory
or legal support for the award of costs under these circumstances, 9 we conclude
that the circuit court erroneously taxed costs of $245.13 in mileage and toll fees
against Brown. On remand, we instruct the circuit court to remove the $245.13 for
mileage and toll fees from the money judgment.

9
Cf. Zurich Am. Ins. Co. v. Wisconsin Physicians Servs. Ins. Corp., 2007 WI App 259,
¶¶42-43, 306 Wis. 2d 617, 743 N.W.2d 710 (narrowly construing cost statute by upholding circuit
court finding that “photocopying” in statute does not include creating an electronic image of a
document); but see Allied Processors, Inc. v. Western Nat’l Mut. Ins. Co., 2001 WI App 129,
¶53, 246 Wis. 2d 579, 629 N.W.2d 329 (“We therefore conclude that a prevailing plaintiff in a
bad faith action may recover as compensatory damages all reasonable expenses incurred in
litigating the bad faith claim. Because Western National does not argue that the expenses for
API’s expert witnesses and for its attorney’s travel and lodging were not reasonable, we conclude
the trial court erred in not allowing these expenses as a component of API’s compensatory
damages.”).

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No. 2018AP1799

¶29 For the reasons stated, we affirm in part and reverse in part with
directions on remand.

By the Court.—Judgment and order affirmed in part; reversed in part
and cause remanded with directions.

Not recommended for publication in the official reports.

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