Midwest Exterior Renovations, LLC v. Progressive Classic Insurance Company

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.
June 26, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP183 Cir. Ct. No. 2023CV580

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

MIDWEST EXTERIOR RENOVATIONS, LLC,

PLAINTIFF-RESPONDENT,

V.

PROGRESSIVE CLASSIC INSURANCE COMPANY,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Blanchard, Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Progressive Classic Insurance Company appeals a
circuit court order denying Progressive’s motion to vacate a default judgment in
No. 2024AP183

favor of Midwest Exterior Renovations, LLC. Progressive contends that the court
erroneously exercised its discretion by refusing to grant relief from the judgment
based on extraordinary circumstances under WIS. STAT. § 806.07(1)(h) (2023-24).1
According to Progressive, the court erroneously exercised its discretion because it
failed to properly consider the relevant factors set forth in Miller v. Hanover
Insurance Co., 2010 WI 75, 326 Wis. 2d 640, 785 N.W.2d 493. However, what
Progressive is arguing, in essence, is that we should weigh the relevant factors
differently than the circuit court did. This argument is not persuasive given our
deferential standard of review, and we conclude that the court reasonably exercised
its discretion. Accordingly, we affirm.

Background

¶2 Midwest Exterior Renovations contracted with an individual named
Omar Sosa and an entity called 2nd Chance Exteriors, LLC to perform home
improvements. According to Midwest, Sosa and 2nd Chance breached this contract
by performing deficient work. Midwest sued Sosa and 2nd Chance. Midwest also
sued Progressive as a possible liability insurer for 2nd Chance. Progressive was
served with Midwest’s complaint on March 13, 2023.

¶3 On May 8, 2023, after Progressive had not filed a responsive pleading
by the applicable deadline, Midwest moved for a default judgment against
Progressive. On June 20, 2023, after Progressive had still not appeared in the action,
the circuit court entered an order for the default judgment. Progressive received
notice of the order for the default judgment by June 22, 2023, and on that same day
the court also entered the final default judgment.

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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¶4 A little less than four months later, on October 13, 2023, Progressive
appeared in the action and filed a motion to vacate the default judgment.
Progressive asked the circuit court to grant relief from the judgment based on
extraordinary circumstances under WIS. STAT. § 806.07(1)(h). The circuit court
denied the motion, and Progressive now appeals.

Discussion

¶5 Our discussion below is in three parts. First, we set forth the standard
of review and the applicable law, including the factors under Miller. Second, we
summarize the circuit court’s reasoning. Third and finally, we explain why
Progressive’s arguments are not persuasive.

A. Standard of Review and Applicable Law

¶6 “Whether to grant relief from judgment under WIS. STAT.
§ 806.07(1)(h) is a decision within the discretion of the circuit court.” Sukala v.
Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610. “We
will uphold the [circuit] court’s exercise of discretion if it examined the relevant
facts, applied a proper standard of law and, using a demonstrated rational process,
arrived at a conclusion a reasonable judge could reach.” Dickman v. Vollmer, 2007
WI App 141, ¶27, 303 Wis. 2d 241, 736 N.W.2d 202.

¶7 WISCONSIN STAT. § 806.07(1) includes multiple provisions allowing
circuit courts to grant relief from a judgment. The relevant provision here,
paragraph (1)(h), “is a ‘catch-all’ provision” that “‘gives the [circuit] court broad
discretionary authority and invokes the pure equity power of the court.’” Sukala,
282 Wis. 2d 46, ¶9 (quoted source omitted).

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¶8 “A court appropriately grants relief from a default judgment under
para. (1)(h) when extraordinary circumstances are present justifying relief in the
interest of justice.” Miller, 326 Wis. 2d 640, ¶35. “The court should not interpret
extraordinary circumstances so broadly as to erode the concept of finality, nor
should it interpret extraordinary circumstances so narrowly that subsection (h) does
not provide a means for relief for truly deserving claimants.” State ex rel. M.L.B.
v. D.G.H., 122 Wis. 2d 536, 552, 363 N.W.2d 419 (1985). “A final judgment should
not be hastily disturbed, but subsection (h) should be construed to do substantial
justice.” Id.

¶9 In Miller, our supreme court explained that there are five factors in
particular that a circuit court should consider when deciding whether to grant relief
from a judgment based on extraordinary circumstances: (1) “whether the judgment
was the result of the conscientious, deliberate and well-informed choice of the
claimant”; (2) “whether the claimant received the effective assistance of counsel”;
(3) “whether relief is sought from a judgment in which there has been no judicial
consideration of the merits and the interest of deciding the particular case on the
merits outweighs the finality of judgments”; (4) “whether there is a meritorious
defense to the claim”; and (5) “whether there are intervening circumstances making
it inequitable to grant relief.” Miller, 326 Wis. 2d 640, ¶36 (quoted source omitted).

¶10 The five Miller factors are not exclusive. See id. “The extraordinary
circumstances test also directs courts to consider ‘any other factors bearing upon the
equities of the case.’” Id., ¶58 (quoted source omitted). Additionally, in the context
of a default judgment, the court must be cognizant that WIS. STAT. § 806.07(1) is
“remedial in nature and should be liberally construed”; that “‘the law prefers,
whenever reasonably possible, to afford litigants a day in court and a trial on the

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issues’”; and that “‘default judgments are regarded with particular disfavor.’” Id.,
¶31 (quoted source omitted).

B. Circuit Court’s Reasoning

¶11 Here, the circuit court reasoned as follows regarding the five primary
Miller factors and other relevant circumstances. As to the first factor, the court
found that Progressive did not conscientiously or deliberately default. However, the
court also found that Progressive’s default was due solely to Progressive’s own
internal errors. By Progressive’s own admission, it defaulted because it failed to
internally process Midwest’s complaint in the proper manner.

¶12 The circuit court also noted that even after Progressive became aware
of the default judgment, it waited several months before seeking relief from the
court. The court acknowledged that Progressive’s explanation for this delay was
that Progressive was conducting an internal investigation. However, the court
appeared to reason that Progressive waited longer than it reasonably should have to
seek relief.

¶13 As to the second factor—whether Progressive received effective
assistance of counsel—the court concluded that this factor weighed in favor of
Midwest because Progressive never claimed that it lacked the effective assistance
of counsel. Rather, Progressive failed to properly process Midwest’s complaint,
then waited several more months to seek relief even after becoming aware of the
default judgment. The court contrasted these circumstances with those involving a
default judgment against a pro se defendant who might not understand the proper
procedures.

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¶14 As to the third factor—whether there was a judicial consideration of
the merits and whether the interest of deciding the case on the merits outweighed
the finality of judgments—the court acknowledged that there had been no
consideration of the merits. However, the court stopped short of concluding that the
interest of deciding the case on the merits outweighed the need for finality.

¶15 As to the fourth factor—whether Progressive had a meritorious
defense to Midwest’s claims—the circuit court accepted as true Progressive’s
allegation that it had a meritorious defense. Specifically, the court accepted as true
that Progressive had a meritorious defense because, although Progressive was listed
as the insurer on the relevant certificate of insurance, Progressive was not actually
the insurance company that issued the relevant policy.2 However, the court weighed
Progressive’s meritorious defense against other factors. The court noted that
Progressive conceded that Midwest used due diligence in naming Progressive as the
insurer. The court also reiterated that the default judgment resulted from
Progressive’s own error and that Progressive waited several months after the default
judgment was entered before alerting the court.

¶16 As to the fifth factor—whether there are intervening circumstances
making it inequitable to grant relief—the circuit court noted that after the default
judgment was entered, Progressive failed to respond to repeated communications
from Midwest’s counsel. Rather, Progressive ignored those communications until

2
Under State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 363 N.W.2d 419 (1985), when
a party moves for relief from a judgment under WIS. STAT. § 806.07(1)(h), the circuit court must
either accept the motion’s allegations as true or hold an evidentiary hearing on the allegations. Id.
at 553, 557; see also Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶10, 282 Wis. 2d 46, 698
N.W.2d 610. Here, Progressive does not argue that the court failed to accept as true the allegation
that Progressive had a meritorious defense. On the contrary, Progressive asserts that the court
“found that … Progressive had a meritorious defense to the claim; namely, that it did not issue an
insurance policy to the Defendants.”

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filing its motion to vacate the default judgment. Finally, the court stated that after
“looking at the entirety of the case,” it had concluded that Progressive’s motion to
vacate the default judgment should be denied.

C. Progressive’s Arguments

¶17 In arguing that this was an erroneous exercise of discretion,
Progressive asserts that the circuit court’s decision is unreasonable because “the
circuit court’s ruling, in essence, is that a default judgment against the wrong party
with no liability for the claim is appropriate punishment for the party’s failure to
move the court for relief from judgment until four months after judgment is
entered.” Progressive argues that the court narrowly focused on this four-month
lapse of time, while “ignoring” the important factor underlying Progressive’s
motion, “namely, that the judgment was entered against a party without liability for
the claim.” Progressive also argues that the court failed to adequately explain why
Progressive’s four-month delay made relief from the default judgment inequitable.

¶18 We are not persuaded, and we conclude that Progressive’s arguments
are at best an oversimplification, and at worst a misrepresentation, of the circuit
court’s reasoning. The court’s decision shows that the court considered not only
Progressive’s four-month delay in seeking relief after receiving notice of the default
judgment, but also a variety of other relevant factors, including Progressive’s
meritorious defense (as alleged), Midwest’s due diligence in naming Progressive as
a defendant, Progressive’s failure to properly process Midwest’s complaint,
Progressive’s access to effective assistance of counsel, and Progressive’s failure to
respond to repeated communications from Midwest’s counsel.

¶19 Progressive argues that it was not served with Midwest’s motion for
a default judgment and that it therefore lacked the opportunity to respond to the

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motion. However, Progressive conceded in the circuit court that service of the
motion was not required under applicable law. More to the point, nothing in the
court’s decision indicates that the court considered Progressive’s failure to respond
to the motion as a significant factor. Rather, the court focused on Progressive’s
other conduct. Progressive cannot seriously argue that the court erred by placing
considerable weight on this other conduct, especially considering the concessions
that Progressive made regarding its conduct. Most notably, Progressive’s counsel
candidly acknowledged to the court that it did “not have a great explanation” for
waiting as long as it did to seek relief from the judgment.3

¶20 Next, Progressive argues that its access to the effective assistance of
counsel should not weigh against it, contrary to the circuit court’s determination.
The logic underlying this argument is difficult to follow. On the one hand,
Progressive concedes that it “does not assert that it did not have access to effective
assistance of counsel to properly answer the Complaint.” On the other hand,
Progressive appears to argue that its access to effective counsel should not weigh
against it because it did not intentionally forgo counsel. Rather, Progressive
explains, it “mistakenly failed to assign counsel” to defend against Midwest’s
complaint.

3
When the circuit court posited to Progressive’s counsel that “you could have contacted
the Court” and that “months and months have gone by,” counsel responded as follows:

And I agree with that. Unfortunately, instead of
contacting the Court or opposing counsel as the first step,
Progressive went into an investigation mode. They were looking
at all the faxes that had gone through and was trying to figure out
how did this happen, so that I could come to the Court and give an
explanation. Unfortunately, I do not have a great explanation for
the Court.

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¶21 As an initial matter, we note that Progressive does not show that it
raised these arguments relating to its access to counsel in the circuit court.
Regardless, Progressive does not persuade us that the court erred in considering
Progressive’s access to effective counsel as a factor weighing against Progressive.
Progressive cites no authority that would prevent the court from weighing the
effective counsel factor against Progressive in circumstances like those here. The
court’s decision shows that the court understood the essential facts relating to
Progressive’s access to counsel. Nothing in the court’s decision indicates that the
court erroneously thought that Progressive had assigned counsel to respond to
Midwest’s complaint or that Progressive intentionally declined counsel at any point
in time. The court simply explained, and reasonably so, that Progressive’s
circumstances differed from those involving a default judgment against a pro se
defendant who might not understand the proper procedures.

¶22 Next, Progressive argues that the circuit court failed to make a finding
that Midwest would be prejudiced by vacating the default judgment. Progressive
also argues that vacating the default judgment would not prejudice Midwest’s ability
to bring a claim against the proper insurer. We are not persuaded by these arguments
for two main reasons.

¶23 First, although prejudice is a relevant consideration, see Miller, 326
Wis. 2d 640, ¶57, Progressive points to no authority that requires the circuit court
to make an express finding of prejudice in every case. Second, although the court
did not use the word “prejudice,” the court’s reasoning implies a finding that
vacating the judgment would be highly inequitable to Midwest considering all of
the circumstances.

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¶24 What Progressive is arguing, in essence, is that we should weigh the
relevant factors differently than the circuit court did. This argument is not
persuasive given our deferential standard of review. Progressive does not show that
the court considered any improper factors, that the court’s decision was based on a
mistaken view of the facts or the law, or that the court’s decision was otherwise
unreasonable. The question is whether the circuit court reasonably exercised its
discretion, not whether a different decision might also have been reasonable.

¶25 For all of the foregoing reasons, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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