Pharmacists Mutual Insurance Company v. St. Somewhere Inc.

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.
December 23, 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. 2024AP2256 Cir. Ct. No. 2021CV19

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PHARMACISTS MUTUAL INSURANCE COMPANY,

PLAINTIFF-APPELLANT,

V.

ST. SOMEWHERE INC. AND

HASTINGS MUTUAL INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Rock County:
ASHLEY J. MORSE, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Nashold, 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).
No. 2024AP2256

¶1 PER CURIAM. Pharmacists Mutual Insurance Company appeals
an order dismissing its complaint against St. Somewhere, Inc., and its insurer
Hastings Mutual Insurance Company. The issue is whether the circuit court
properly granted the defendants’ summary judgment motion and rejected
Pharmacists Mutual’s equitable estoppel argument against the defendants’ statute
of limitations defense. We conclude that no reasonable fact-finder could find that
Pharmacists Mutual reasonably relied on the defendants’ claimed inaction, and
therefore we affirm the dismissal of the complaint based on the statute of
limitations defense.

I. BACKGROUND

¶2 For purposes of this appeal, it is not necessary to fully recount the
factual allegations of the case or the involvement of all parties. The case arises
from a car accident. A person injured in the accident was driving for an employer
at the time, and plaintiff Pharmacists Mutual is the employer’s insurer, suing under
its subrogation right. The alleged tortfeasor is defendant Arik Grefsheim.
Pharmacists Mutual alleged that, at the time of the accident, Grefsheim was
driving for his employer, St. Somewhere, doing business as Badgerland Properties.
Hastings Mutual is Badgerland’s insurer. Badgerland and Hastings Mutual moved
for summary judgment on a statute of limitations theory. The circuit court granted
the motion and dismissed the complaint as to these defendants.

¶3 This court reviews a grant of summary judgment de novo, using the
same methodology used by the circuit court. Bank of New York Mellon v.
Klomsten, 2018 WI App 25, ¶31, 381 Wis. 2d 218, 911 N.W.2d 364. That
methodology is well established and need not be repeated in full here. However,
we emphasize that we must draw all reasonable factual inferences in favor of the

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non-moving party. H&R Block Eastern Enterprises, Inc. v. Swenson, 2008 WI
App 3, ¶11, 307 Wis. 2d 390, 745 N.W.2d 421 (2007).

¶4 On appeal, Pharmacists Mutual argues that summary judgment is
improper because a reasonable fact-finder could find that the defendants are
equitably estopped from asserting a statute of limitations defense. The argument
rests on the proposition that, at the time of the accident, and continuing after the
accident, tortfeasor Grefsheim and his employer, Badgerland, did not inform law
enforcement or anyone involved that Grefsheim had been driving in the course of
his employment at the time of the accident, or else affirmatively lied on this topic.
Pharmacists Mutual contends that, because of Grefsheim and Badgerland’s alleged
silence or untruthfulness on this topic, Pharmacists Mutual was unaware of a
potential claim against Badgerland and its insurer based on respondeat superior.
As a result, the argument proceeds, Pharmacists Mutual did not sue Grefsheim
until shortly before the expiration of the statute of limitations, and it was only after
that deadline that Grefsheim informed Pharmacists Mutual that he was driving in
the course of his employment at the time of the accident.

¶5 The parties agree on the elements of equitable estoppel. They are:
(1) action or non-action; (2) on the part of one against whom estoppel is asserted;
(3) which induces reasonable reliance thereon by the other, either in action or non-
action; and (4) which is to the other’s detriment. Nugent v. Slaght, 2001 WI App
282, ¶29, 249 Wis. 2d 220, 638 N.W.2d 594. Pharmacists Mutual argues that a
reasonable fact-finder could find in its favor on these elements. We assume, for
purposes of this opinion, that whether the historical facts satisfy these elements is
an issue to be resolved by the fact-finder, although there is at least some case law
suggesting that this is actually a legal issue. See, e.g., id.

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II. THE NATURE OF THE CLAIMED INEQUITABLE INACTION

¶6 Our decision in this appeal ultimately rests on whether Pharmacists
Mutual can show that it reasonably relied on an asserted lack of disclosure or false
statement by the defendants. But we first discuss the inaction or falsehood by
Grefsheim and Badgerland that is claimed to have been inequitable. We do so
because, to determine whether Pharmacists Mutual reasonably relied on the
defendants’ inaction or falsehood, we must have a clear idea of what that inaction
or falsehood could have consisted of. Phrased in summary judgment terms, we
must consider what a reasonable fact-finder could find the defendants’ action or
inaction to have been, considering the evidence in the light most favorable to
Pharmacists Mutual.

¶7 In its opening brief on appeal, Pharmacists Mutual states that
“Grefsheim never disclosed to law enforcement that he was in the course and
scope of employment,” [app br at 10] and that Badgerland “never told law
enforcement … that Grefsheim was in the course and scope of his employment.”
The brief makes these assertions appear to be undisputed facts, but the brief
contains no citations to the record to support these factual assertions.

¶8 Pharmacists Mutual acknowledges that, in deposition testimony,
both Grefsheim and a Badgerland representative who was at the accident scene
said they did not recall whether they spoke to law enforcement. No inference can
be drawn from this evidence as to what they did or did not tell law enforcement.

¶9 It appears from the briefing that Pharmacists Mutual expects us to
infer from the motor vehicle crash report prepared by the sheriff’s department that
Grefsheim and Badgerland shared no information with law enforcement on the
topic of whether Grefsheim was working for an employer at the time of the

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accident. However, Pharmacists Mutual does not initially explain why this report
supports a reasonable inference that they were silent on that topic. The report
form does not appear to contain a field to record whether a motorist was driving in
the course of employment, and therefore the mere absence of that information
from the report does not support any inference about what was, or was not, said to
law enforcement on this topic.

¶10 Pharmacists Mutual observes that the form shows that law
enforcement believed Grefsheim had no insurance, and that he was cited for that
deficiency. Pharmacists Mutual may be suggesting that it could be inferred from
this that, if Grefsheim had told law enforcement that he was driving in the course
of his employment, the crash report would show that he was insured and he would
not have been cited. However, this does not appear to be a reasonable inference,
for the following reason.

¶11 The report shows that Grefsheim was driving his own vehicle. He
was cited for operating a motor vehicle on which the owner or operator did not
have in effect a liability policy “with respect to the vehicle being operated,” to
quote the statute. See WIS. STAT. § 344.62(1) (2023-24).1 Even if Grefsheim had
mentioned his employment, which might result in potential employer liability
under respondeat superior, there is no reason to think that the potential
indemnification of that liability by the employer’s insurer would qualify as
insurance of Grefsheim’s personal vehicle. Thus, Grefsheim’s driving in the
course of his employment would not cure his violation of § 344.62(1) for
operating his vehicle without carrying an insurance policy on that vehicle. As a

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

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result, this portion of the form, and the citation of Grefsheim, do not support any
reasonable inference that Grefsheim was silent or lied about his employment status
to law enforcement.

¶12 In its reply brief, Pharmacists Mutual appears to imply that a
reasonable inference can be drawn, from a different part of the form, that law
enforcement asked Grefsheim if he was driving for an employer, and that he said
he was not. This argument is based on the observation that, in referring to the
injured driver of the other vehicle, the crash report identifies the insurance
company of his employer, rather than identifying the injured driver’s own personal
insurance. Pharmacists Mutual suggests that this allows an inference that law
enforcement asked the injured driver about his employment, or was otherwise
interested in obtaining that information, and, therefore, they probably did the same
with Grefsheim. Pharmacists Mutual goes so far as to state as fact that
Badgerland, through its employees, “provided inaccurate and incomplete
information to law enforcement about insurance available to satisfy damages
caused by Grefsheim,” and that Badgerland “led law enforcement to believe that
no insurance would satisfy damages caused by Grefsheim’s negligence.”

¶13 However, we conclude that this portion of the form again fails to
provide any reasonable basis to infer what information Badgerland’s employees or
other representatives did or did not provide, or what law enforcement believed, on
this topic. It does not provide that basis for at least two reasons.

¶14 One reason is that the injured driver’s vehicle displayed a company
logo. This would have made the employment nature of the driving readily
observable, without the need to ask its driver.

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¶15 The other reason is even more significant. The crash report shows
that the vehicle driven by the injured driver was owned by a corporation. This
would have raised the issue of the insurance status of the company-owned vehicle
and the crash report records what the form suggests is the owner’s insurer,
Pharmacists Mutual. In its reply brief, Pharmacists Mutual describes the report as
identifying it “as [the injured driver’s] insurer,” but the form does not actually
connect Pharmacists Mutual with the driver, only with the corporate owner of the
vehicle. As with Grefsheim and his vehicle, the crash report is focused on the
insurance status of the vehicle, not the employment status of the driver.

¶16 For these reasons, no reasonable inference can be drawn from the
fact that the report identifies the insurance company of the vehicle’s corporate
owner that law enforcement asked Grefsheim about his employment status, or that
law enforcement formed any belief about what insurance might ultimately be
available in connection with Grefsheim’s employer.

¶17 In sum, Pharmacists Mutual has not cited to any evidence from
which a fact-finder could reasonably infer that Grefsheim and Badgerland were
silent or gave false information at the scene of the accident or to law enforcement
about Grefsheim’s employment status. Without that inference of historical fact,
Pharmacists Mutual must show that it reasonably relied on other inaction by them.

¶18 The remaining inaction that Pharmacists Mutual claims to have
relied on appears to have two parts. One is that, following the accident, Grefsheim
and Badgerland did not, on their own initiative, provide the information about
Grefsheim’s employment status to anyone such as the injured driver, his employer,
or Pharmacists Mutual. The other inaction is that Grefsheim did not respond to
three subrogation letters sent to him by Pharmacists Mutual, although Pharmacists

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Mutual acknowledges that one of those letters was returned as undeliverable and
was therefore not seen by Grefsheim. Pharmacists Mutual averred that these
letters were sent in March through June 2018, between approximately two and
four months after the accident. We now address these two forms of inaction in the
context of the reasonable reliance issue.

III. REASONABLE RELIANCE ON THE INACTION

¶19 We will refer to Grefsheim and Badgerland collectively as
Badgerland for the rest of this discussion. For purposes of this element, we
assume, without deciding, that a fact-finder could reasonably find that Pharmacists
Mutual actually relied on these two forms of inaction by Badgerland to wait to file
suit for nearly three years, until January 2021, when the statute of limitations had
nearly expired. We focus instead on whether a fact-finder could find that such
reliance was reasonable.

¶20 Pharmacists Mutual directs us to an opinion which it argues stands
for the proposition that silence can reasonably be relied on, Wosinski v. Advance
Cast Stone Co., 2017 WI App 51, ¶¶42-43, 377 Wis. 2d 596, 901 N.W.2d 797.
But in Wosinski there was a contractual relationship between the parties that
required disclosure and supported a conclusion that reliance on silence was
reasonable, and this relationship appears pertinent to the court’s analysis. See id.
Here, Pharmacists Mutual does not identify any similar relationship or legal duty
between itself and Badgerland.

¶21 Pharmacists Mutual’s reply brief suggests that Badgerland had a
legal duty to inform law enforcement after the accident that he was driving for his
employer. If that affirmative legal duty existed, Pharmacists Mutual might
reasonably have relied on Badgerland to have complied with the law, and thus be

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able to construe its silence to law enforcement as meaning that no employment
was involved. However, even if that affirmative duty did exist, here there was still
no basis for Pharmacists Mutual to reasonably believe that Badgerland did not
provide this information to law enforcement. As we previously discussed, the
crash report form did not call for information about a driver’s employment, and
Pharmacists Mutual does not provide us with any other reasonable basis to infer
from the report that Badgerland did not provide this information to law
enforcement. In other words, Pharmacists Mutual could not reasonably rely on the
absence of relevant references in the report, because even if Badgerland had
complied with an assumed affirmative duty to tell law enforcement, the report
might still be silent as to a driver’s employment. The report did not purport to be a
source of information on the employment topic.

¶22 Beyond this, Pharmacists Mutual does not clearly explain why it
could reasonably expect disclosure by Badgerland. In this context, the question
that Pharmacists Mutual must answer is this: Why was it reasonable for
Pharmacists Mutual to rely on Badgerland to voluntarily disclose this information
to anyone in a way that would have reached Pharmacists Mutual, whether on
Badgerland’s own initiative or in response to a subrogation letter? This reliance
would be reasonable only if Pharmacists Mutual had a reasonable basis to expect
that such disclosure would occur. Pharmacists Mutual does not identify any such
basis, other than the claimed duty to law enforcement discussed above.

¶23 Instead, Pharmacists Mutual focuses on other aspects of its decision
to delay filing suit. It argues that it took reasonable steps to investigate, and that
the other information available to it gave no indication to suspect that Grefsheim
might have been driving for an employer. Pharmacists Mutual also argues that its

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delay in filing suit was reasonable for the purpose of allowing full assessment of
the extent of its insured’s damages.

¶24 These arguments do not show that Pharmacists Mutual reasonably
relied on inaction by Badgerland. Assuming that Pharmacists Mutual made a
reasonable, but unsuccessful, effort to investigate, that would not mean that it
reasonably relied on the inaction by Badgerland when it delayed. Reasonableness
of an investigation is not the same as reasonable reliance on another’s inaction.
Similarly, waiting for damages to become clear was not a decision based on
inaction by Badgerland. Indeed, instead of showing reasonable reliance on
inaction by Badgerland, these arguments imply that Pharmacists Mutual did not
actually rely on inaction by Badgerland, but it relied on considerations unrelated to
Badgerland’s inactions.

¶25 For these reasons, we conclude that a reasonable fact-finder could
not find that Pharmacists Mutual reasonably relied on inaction by Badgerland
when it delayed filing suit. Therefore, equitable estoppel does not apply, and the
circuit court properly dismissed the claims against Badgerland and Hastings
Mutual because the claims lapsed at the end of the statute of limitations period.

By the Court.—Order affirmed.

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

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