My Garage Is Bigger Than Yours

My Garage Is Bigger Than Yours

As of late, Wisconsin courts have been grappling with one of the most important questions facing the nation: What is a garage? Is it defined by size or exterior proportions? Do the construction materials define what it means to be a garage? Attached or detached? Is it defined by the contents it holds within? Or should it be defined by the conduct of those who frequent the garage?

For those among us who have long grappled with these fundamental issues, rest easy as the Wisconsin Court of Appeals in Buehrens v. Schave provides clarity. Like all good lawsuits, it started between feuding neighbors. The Schaves built a “building” with “an electric garage door” that is “thirty-six feet by eighty feet, reaching sixteen feet high.” To put this in context, the Schaves’ building was the dimensional equivalent of a great blue whale. Angry neighbors decried that it was a “pole barn” that violated restrictive covenants “as its size rendered it something other than a garage.” Without casting judgment, it is fair to say that there is no community barn-raising taking place in this subdivision.

In filing their lawsuit, the neighbors asked the court to order the building removed. The Schaves would have none of it and declared that the building fell squarely within the definition of a “garage.” Which, of course, was allowed by the subdivision’s covenants. To determine the fate of the building, the court turned to Webster’s Dictionary. There, the court found that “a reputable dictionary defines ‘garage’ as ‘a building or compartment of a building used for housing an automotive vehicle’.” With this definition, the court waved its wand and crowned the “building” a “garage” because the Schaves could show it was used for storing automobiles. As a result, the Schaves get to keep their garage.

However, the case reveals the problem with clear-line definitions. For instance, if the Schaves decided not to store automobiles would it revert to a pole barn and lose its status as a garage? Also, as most of us know, many garages have never been kissed by the warm rubber of a car’s tire, but instead have been disgraced by boxes of endless clutter. Does this make such a structure any less of a garage? Wouldn’t it be as good, if not better, to define a garage based on the activities that take place within such as band practice and startup companies? Otherwise, what fate befalls punk rock bands like Nirvana and industrious businesses following in the footsteps of Apple? To me, defining a garage by one item that may be found inside is like defining a human by the presence of an appendix or tonsils.

 

The COVID Trials

The COVID Trials

The constitutional right to a jury trial does not take a back seat to coronavirus (COVID-19.) Yet, COVID-19 has impacted the ability of courts to supply juries for trial. The Seventh Amendment codifies the right to a jury trial not only for criminal trials, but in civil cases as well. This article explores how courts are grappling with the challenge of seating a jury and trying cases.  Litigants know too well the meaning of the legal maxim, “justice delayed is justice denied.” Nevertheless, a jury that is distracted and afraid for their physical well-being because of COVID-19 cannot deliver justice. Herein lies the conflict facing our courts – the right to a jury of one’s peers and juror’s right to safety.

One of the first federal judges to resume jury trials during the COVID-19 pandemic likened the experience to “building an airplane while you’re flying it.” A playbook for resuming jury trials is emerging from these pioneering judges who have conducted jury trials in the wake of COVID-19.

First, the layout and the physical arrangement of jurors, in particular the confinement of the jury box, must be addressed. One solution has been to spread jurors out in the gallery — to allow for social distancing. Going further, other courtrooms have added physical barriers and guards. In addition to plexiglass barriers, some courts have installed audio systems with headsets that enable clients and lawyers to whisper to each other, much as they would in a traditional courtroom, but from a safe distance. One such recommendation is to proceed with smaller juries.  For instance, Wisconsin law allows for a jury of six persons in civil cases.

The next set of the recommendations focus on safety practices, which include requiring facial coverings be worn by all individuals in the courtroom (judges and staff included), having prospective jurors’ temperatures taken as they enter the court building, providing hand sanitizer, disinfectant wipes, disinfectant spray and paper towels. Another practical policy is to avoid passing exhibits between jurors.

Courts also have wrestled with the question of who must wear masks in the courtroom. Most courts seem to be on the side of masks for all persons in the courtroom. This is problematic because of the difficulty of assessing credibility of someone in a mask, a core function of the jury. Where possible, courts have permitted witnesses to be examined without masks, via video from within a room in the courthouse.

The challenges of in-person jury trials have led some courts to experiment with more novel ideas. Could a jury trial be conducted by Zoom? It appears so. Remote civil jury trial pilot programs in Florida and Texas are already in place. A jury trial that occurred in Florida commenced entirely via Zoom; some potential jurors had to be dismissed for technical issues during jury selection. As expected, audio and video feeds occasionally froze. The judge was often asking each individual juror: “Can you see me? Can you hear me?” Despite technical issues, the Florida Zoom trial was successful.

There is no single antidote for resuming jury trials in the wake of this pandemic. In the words of Hibbing, Minnesota’s most famous resident, “the times they are a-changin’.” More than ever, courts and communities must work together to safely preserve the right to a jury trial and concomitant duty to serve as a juror.

 

Don’t Get Burned by “Fire” Insurance’s 12-month Statute of Limitation

Don’t Get Burned by “Fire” Insurance’s 12-month Statute of Limitation

If you were trying to get yourself to sleep by perusing the Wisconsin Statutes on Insurance Contracts, you may run across Wis. Stat. § 631.83(1)(a) – statutory periods of limitation on fire insurance.  The section states: “An action on a fire insurance policy must be commenced within 12 months after the inception of the loss.  This rule also applies to riders or endorsements attached to a fire insurance policy covering loss or damage to property or to the use of or income from property from any cause, and to separate windstorm or hail insurance policies.”  This is a sneaky statute that can have huge implications for homeowners and should be known by all.

First, “fire insurance” means a whole lot more than just “fire.”  In fact, Wisconsin courts have said that “fire insurance” is merely a “generic term” that “covers indemnity insurance for losses to property caused by many other perils than fire.”  Villa Clement, Inc. v. Nat’l Union Fire Ins. Co., 120 Wis. 2d 140 (Ct. App. 1984).  “Fire insurance” is broad enough to include perils such as fire, lightning, hail, tornado and even theft.  Considering the many possible causes of property damage that have nothing to do with actual fire, it is crucial to know that this 12-month statute of limitation applies “to any suit to recover for loss from any peril covered by the policy.”  Id. at 145-46.

Second, fire insurance’s statutory limitation of 12 months is much shorter than many commonly known statutes of limitation in Wisconsin, such as three years for most negligence actions or six years for most contract disputes.  Also, the limitation is 12 months “after the inception of the loss,” not the discovery of the loss.  Wisconsin courts have ruled that “inception of the loss” unambiguously means the date on which the loss occurs.  It does not matter when the owner-insureds discover the damage.  In other words, it is the date of the storm that is important, not the date you discovered the hail damage.

As such, if you are unable to reach an agreement with your insurance company on your property damage, it is crucial to act fast, getting counsel or filing suit yourself, to avoid having your claim completely time-barred by this sneaky 12‑month cutoff.

 

What is a Supported Decision-Making Agreement?

What is a Supported Decision-Making Agreement?

A supported decision-making agreement is a method of decision-making available to individuals with disability through an arrangement with another trusted person. These agreements give individuals with functional impairments the ability to create a formal arrangement for support that service providers must recognize, while retaining rights and self-direction that might otherwise be lost through guardianship or even by using power of attorney. These agreements are based on three principles: (1) that everyone has the right to make choices, (2) that people can get help making choices without giving up that right, and (3) that people will often need help in understanding, making and communicating their choices.

With supported decision-making agreements, the individual retains their right to make decisions. The individual can make their own decisions and they can identify areas of their life where they would like to have someone support them in their decision making. The supporter would assist the functionally impaired individual in gathering information, comparing the different options, as well as helping the individual communicate their decision to a third party. All the tasks that the supporter can assist with are only used to assist the functionally impaired individual and it does not give the supporter any legal authority over the individual. Therefore, these agreements can be useful in maintaining the impaired individual’s rights and self-direction.

These agreements can be used in combination with other legal arrangements, such as power of attorney and/or guardianship. These documents are not mutually exclusive and in fact can be used to complement each other. A supported decision-making agreement can help cover areas that are not traditionally covered by a power of attorney, such as housing, filing taxes or even choosing a service provider. Additionally, these agreements can be a way to transition an individual to more support when needed, especially in cases where the individual’s impairment gets worse over time.

It is important to note that a supported decision-making agreement is distinctly different from a power of attorney. Firstly, the supporter does not have any authority to make the decision for the individual. The impaired individual still retains their right to make the decision, whether or not the supporter agrees with the decision is irrelevant. Secondly, the supporter does not have the legal authority to sign documents for the impaired individual or bind that individual to a legal agreement. Lastly, the supporter is limited in their role by the specific terms of the agreement as determined by the impaired individual. Therefore, the impaired individual can specifically designate in what areas and to what extent the supporter is allowed to assist with the decision-making process.

In respect to guardianship proceedings, the presence of a supported decision-making agreement is not evidence of incapacity or incompetency. In fact, now during a guardianship proceeding, the judge must consider the use of alternatives to guardianship. These alternatives include whether a supported decision-making agreement has been attempted. Additionally, the judge may consider whether less restrictive means, such as a supported decision-making agreement, could be used in the situation. Therefore, it is important to consider whether a supported decision-making agreement would be a feasible possibility for an impaired individual prior to considering a full guardianship proceeding.

If considering entering into a supported decision-making agreement, it may be a good idea to get your attorney involved. When entering into these types of agreements, it is important to consider what areas you would like support in your decision-making and what kind of support you would want. You need to consider if you would like the supporter to gather information, help you understand your options and/or help you communicate those decisions. Additionally, it will be important to consider the person you would like to designate as your supporter. Who will be able to assist you the most effectively in making decisions in certain areas of your life? Due to all of these considerations that go into the process of drafting a supported decision-making agreement, it is important that an attorney assist you in making sure the agreement represents your wishes and provides you with the needed support you require in making decisions.

 

Five Key Takeaways Following the Wisconsin Supreme Court’s Invalidation of the Safer at Home Order

Five Key Takeaways Following the Wisconsin Supreme Court’s Invalidation of the Safer at Home Order

The Wisconsin Supreme Court, by a 4-3 vote, invalidated Wisconsin’s Safer-at-Home Order, also known as Order #28.  It issued that decision on May 13, 2020. Here are five key takeaways to consider in the wake of that decision:

1.)  As of this writing, Order #28 is no longer enforceable. People in Wisconsin are not required by that Order to stay at home.  Non-essential businesses are not required to remain closed.  There is one exception to the Supreme Court’s decision, however:  The portion of Order #28 that requires closure of public and private K-12 schools remains in effect for the remainder of the 2019-2020 school year.

2.)  The Supreme Court’s decision does not affect any other federal or state legislation concerning the COVID-19 pandemic, such as the so-called Families First legislation, the CARES Act, Wisconsin Act 185, or any similar legislation. Those laws remain in effect.

3.)  Wisconsin businesses must continue to be aware of the Wisconsin Safe Place law. That law requires that an employer, or owner of a place that is open to the public must provide a safe place of employment for both employees and visitors and to undertake that which is reasonably necessary to life, health, safety and general welfare of employees and visitors.  OSHA’s general duty clause also remains in effect.  It holds that each employer shall furnish to each employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

4.)  People and businesses may continue to use the concepts found within Order #28 to guide their conduct. However, such guidance is voluntary; it is not mandatory.  Businesses should continue to review the CDC or the Wisconsin DHS website for suggested practices in addressing health concerns relating to COVID-19.

5.)  It is possible that local health authorities may issue rules or orders that affect people or businesses following the invalidation of Order #28. In addition, Governor Tony Evers and the Wisconsin Legislature may collaborate on new rules or legislation to replace Order #28.

Stay apprised of new legal developments in the weeks and months ahead.  Seek legal counsel as necessary.  In the meantime, the attorneys at Anderson O’Brien will continue to monitor the legal developments with you.

 

U.S. Department of Labor and IRS Extend COBRA Deadlines

U.S. Department of Labor and IRS Extend COBRA Deadlines

Amid the COVID-19 pandemic, Wisconsinites, along with the rest of the nation, have endured sudden and severe job loss.  As of May 14, 2020, the University of Wisconsin Center for Research on the Wisconsin Economy estimated the Wisconsin unemployment rate to be 21.9%.  In addition to the significant financial losses that attend such massive changes in employment status, job loss often results in the loss of health coverage.  Recent data indicates that roughly 57% of Wisconsin’s non-elderly population (i.e., non-Medicare) obtain their health insurance through an employer.

As many are familiar, one of the health insurance options available to those who lose their employment and employer provided health insurance is to apply for COBRA, which allows an employee and his or her dependents to maintain coverage at their own expense by paying the full cost of the premium.  Of course, there are certain deadlines that apply to seeking COBRA coverage.  Normally, a person has 60 days from the date of receipt of the COBRA notice to elect COBRA (election period), and then 45 days after the date of COBRA election to make the initial premium payment (premium payment period).

However, with the sudden and massive job losses due to the COVID-19 pandemic, on May 4, 2020, the U.S. Department of Labor and the IRS extended these standard COBRA deadlines.  Under the new rule, many COBRA deadlines are extended beyond the “Outbreak Period,” which is defined as March 1, 2020, to 60 days after the end of the National Emergency declaration.  The relief specifically directs all group health plans subject to ERISA or the IRS Code to disregard the period from March 1, 2020, through 60 days after the announced end of the national emergency when determining certain periods and dates, including the election period for COBRA continuation coverage and the date for making COBRA initial premium payments.

These changes are a welcome acknowledgment by these entities that the huge societal upheaval caused by the pandemic has made meeting standard deadlines increasingly difficult.  Feel free to contact one of our employment attorneys with any questions or concerns.  Be well and stay safe.

 

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