(5) Exception of class actions.
This section is subject to s. 803.08
When the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but failure to do so at the trial level was cured by service at the appellate level. In Matter of Estate of Fessler, 100 Wis. 2d 437
, 302 N.W.2d 414
Sub. (2) (b) requires a subrogated party to choose one of the listed options or risk dismissal with prejudice. Radloff v. General Casualty Co. 147 Wis. 2d 14
, 432 N.W.2d 597
(Ct. App. 1988).
The mere presence of a party does not constitute “participation" under sub. (2) (b). A subrogated insurer who exercises none of the 3 options under sub. (2) (b) must pay its fair share of attorney fees and costs if it has notice of and does nothing to assist in the prosecution of the action. Ninaus v. State Farm Mutual Automobile Insurance Co. 220 Wis. 2d 869
, 584 N.W.2d 545
(Ct. App. 1998), 97-0191
Failure to comply with the technical requirement under sub. (2) (b) that a joined party must file a written waiver of the right to participate in the trial does not prevent the joined party's assertion that it had a representation agreement with the joining party. Gustafson v. Physicians Insurance Co. 223 Wis. 2d 164
, 588 N.W.2d 363
(Ct. App. 1998), 97-3832
Whether a party is an “indispensable party" requires a 2-part inquiry. First it must be determined if the party is “necessary" for one of the 3 reasons under sub. (1). If not, the party cannot be “indispensable" under sub. (3). If the party is found necessary, then, whether “in equity and good conscience" the action should not proceed in the absence of the party must be determined. Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App 259
, 258 Wis. 2d 210
, 655 N.W.2d 474
If a person has no right of intervention under s. 803.09 (1), the courts have no duty to join that person sua sponte
as a necessary party under sub. (1) (b) 1. The inquiry of whether a movant is a necessary party under sub. (1) (b) 1. is in all significant respects the same inquiry under s. 803.09 (1) as to whether a movant is entitled to intervene in an action as a matter of right, including the requirement that the interest of the movant is adequately represented by existing parties. A movant who fails to meet that requirement for intervention as of right may not simply turn around and force its way into the action by arguing that the court must join the movant, sua sponte
, as a necessary party under s. 803.03 (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9
, 307 Wis. 2d 1
, 745 N.W.2d 1
If the plaintiff was required to join a party holding a “constituent part” of a cause of action under sub. (2) (a), but failed to do so, then the unjoined subrogation, derivative, or assigned claims were deemed timely when made by the other party by virtue of the s. 802.09 (3) relation-back doctrine — as long as such claims were asserted in the original action. However, if the plaintiff was not required to join the other party's cause of action under sub. (2) (a) — i.e., the other party's claims did not arise by subrogation, derivation, or assignment, and therefore were not part of the plaintiff's claim in chief — the other party's claims do not relate back to the date of the original filing and are time-barred. Town of Burnside v. City of Independence, 2016 WI App 94
, ___ Wis. 2d ___, ___ N.W.2d ___, 16-0034
Permissive joinder of parties. 803.04(1)
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action, or which by its policy agrees to prosecute or defend the action brought by plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. If the policy of insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state.
If an insurer is made a party defendant pursuant to this section and it appears at any time before or during the trial that there is or may be a cross issue between the insurer and the insured or any issue between any other person and the insurer involving the question of the insurer's liability if judgment should be rendered against the insured, the court may, upon motion of any defendant in the action, cause the person who may be liable upon such cross issue to be made a party defendant to the action and all the issues involved in the controversy determined in the trial of the action or any 3rd party may be impleaded as provided in s. 803.05
. Nothing herein contained shall be construed as prohibiting the trial court from directing and conducting separate trials on the issue of liability to the plaintiff or other party seeking affirmative relief and on the issue of whether the insurance policy in question affords coverage. Any party may move for such separate trials and if the court orders separate trials it shall specify in its order the sequence in which such trials shall be conducted.
(3) Actions affecting marital property.
In an action affecting the interest of a spouse in marital property, as defined under ch. 766
, a spouse who is not a real party in interest or a party described under s. 803.03
may join in or be joined in the action.
(4) Separate trials.
The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.
Sup. Ct. Order, 67 Wis. 2d 585, 646 (1975); 1975 c. 218
; 1985 a. 37
See s. 632.24
as to insurers being made defendants.
See s. 775.10
providing that the state may be made a party in an action to quiet title to land.
In an action for injuries allegedly sustained as a result of 3 separate surgical procedures performed by 2 unassociated doctors residing in different counties, separate places of trial were required and joinder of separate causes of action was improper. Voight v. Aetna Casualty & Surety Co. 80 Wis. 2d 376
, 259 N.W.2d 85
When an insurer made a good-faith request for a bifurcated trial under sub. (2) (b) on the issue of coverage, the trial court erred in finding that the insurer acted in bad faith by refusing to settle. Mowry v. Badger State Mutual Casualty Co. 129 Wis. 2d 496
, 385 N.W.2d 171
That a policy is one of indemnity rather than liability does not prevent direct action against the insurer. Decade's Monthly Fund v. Whyte & Hirschboeck, 173 Wis. 2d 665
, 495 N.W.2d 335
Joinder of one tortfeasor who causes an injury and a successive tortfeasor who aggravates the injury is permitted by this section. Kluth v. General Casualty Co. 178 Wis. 2d 808
, 505 N.W.2d 442
(Ct. App. 1993).
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule, the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc. 200 Wis. 2d 512
, 546 N.W.2d 870
(Ct. App. 1996), 93-3182
If the issue of insurance coverage involves a party not a party to the underlying lawsuit, coverage may be determined by either a bifurcated trial or a separate declaratory judgment action. The plaintiff and any other party asserting a claim in the underlying suit must be named, and consolidation with the underlying action may be required. Fire Insurance Exchange v. Basten, 202 Wis. 2d 74
, 549 N.W.2d 690
The federal compulsory counterclaim rule precluded an action against an insurer under the state direct action statute when the action directly against the insured was barred by rule. Fagnan v. Great Central Insurance Co. 577 F.2d 418
In order to join an insurer under sub. (2) (a), the accident must have occurred in this state or the policy must have been issued or delivered in the state. Utz v. Nationwide Mutual Insurance Co. 619 F.2d 7
Sub. (2) (a) is limited to negligence claims, which do not include implied warranty claims. Rich Products Corporation v. Zurich American Insurance Co. 293 F.3d 981
A breach of fiduciary duty was negligence for purposes of Wisconsin's direct action and direct liability statutes. Federal Deposit Insurance Corp. v. MGIC Indemnity Corp. 462 F. Supp. 759
Actions to satisfy spousal obligations. 803.045(1)(1)
Except as provided in sub. (2)
, when a creditor commences an action on an obligation described in s. 766.55 (2)
, the creditor may proceed against the obligated spouse, the incurring spouse or both spouses.
In an action on an obligation described in s. 766.55 (2) (a)
, a creditor may proceed against the spouse who is not the obligated spouse or the incurring spouse if the creditor cannot obtain jurisdiction in the action over the obligated spouse or the incurring spouse.
After obtaining a judgment, a creditor may proceed against either or both spouses to reach marital property available for satisfaction of the judgment.
This section does not affect the property available under s. 766.55 (2)
to satisfy the obligation.
History: 1985 a. 37
Third-party practice. 803.05(1)
At any time after commencement of the action, a defending party, as a 3rd-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the defending party for all or part of the plaintiff's claim against the defending party, or who is a necessary party under s. 803.03
. The 3rd-party plaintiff need not obtain leave to implead if he or she serves the 3rd-party summons and 3rd-party complaint not later than 6 months after the summons and complaint are filed or the time set in a scheduling order under s. 802.10
; thereafter, the 3rd-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and 3rd-party complaint, hereinafter called the 3rd-party defendant, shall make defenses to the 3rd-party plaintiff's claim as provided in s. 802.06
and counterclaims against the 3rd-party plaintiff and cross claims against any other defendant as provided in s. 802.07
. The 3rd-party defendant may assert against the plaintiff any defenses which the 3rd-party plaintiff has to the plaintiff's claim. The 3rd-party defendant may also assert any claim against the plaintiff if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff's claim against the 3rd-party plaintiff. The plaintiff may assert any claim against the 3rd-party defendant if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff's claim against the 3rd-party plaintiff, and the 3rd-party defendant thereupon shall assert defenses as provided in s. 802.06
and counterclaims and cross claims as provided in s. 802.07
When a counterclaim is asserted against a plaintiff, the plaintiff may cause a 3rd party to be brought in under circumstances which under this section would entitle a defendant to do so.
Oral argument permitted on motions under this section may be heard by telephone under s. 807.13 (1)
Sup. Ct. Order, 67 Wis. 2d 585, 648 (1975); 1975 c. 218
; Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2005 a. 253
; 2007 a. 97
Judicial Council Committee's Note, 1977: Sub. (1) has been amended to allow a third-party plaintiff to serve the third-party summons and third-party complaint without leave of the court to implead if the third-party summons and third-party complaint are filed not later than 6 months after the summons and complaint in the original action are filed. The new six-month time period has been created since the old time period allowing a third-party plaintiff to file a third-party summons and third-party complaint without the need to obtain leave to implead during the time set in a scheduling order under s. 802.10 can no longer apply in most cases. The use of such a scheduling order is now completely discretionary with the trial judge. [Re Order effective July 1, 1978]
Judicial Council Note, 1988: Sub. (3) [created] allows oral argument permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Misjoinder and nonjoinder of parties. 803.06(1)
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Oral argument permitted on motions under this subsection may be heard by telephone under s. 807.13 (1)
When it comes to the attention of the court that the summons has not been served upon a named defendant, the court may enter an order on its own initiative, after notice to parties of record, dismissing the action as to that defendant without prejudice.
History: Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
Judicial Council Committee's Note, 1976: Sub. (2) establishes an efficient procedure for dismissing an action against a defendant who has not been served. It will help alleviate situations such as clouds on title that could result from a summons that was not served being on file with the clerk of court. [Re Order effective Jan. 1, 1977]
Judicial Council Note, 1988: Sub. (1) is amended to permit oral argument on motions to drop or add parties to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in s. 803.04
Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); 1975 c. 218
; 2007 a. 97
Class actions may be maintained.
When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, except that no claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.
“Residual Funds" means funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorney fees and other court-approved disbursements in an action under this section.
“WisTAF" means the Wisconsin Trust Account Foundation, Inc.
Any order entering a judgment or approving a proposed compromise of a class action that establishes a process for
identifying and compensating members of the class shall provide for disbursement of any residual funds. In class actions in which residual funds remain, not less than fifty percent of the residual funds shall be disbursed to WisTAF to support direct delivery of legal services to persons of limited means in non-criminal matters. The circuit court may disburse the balance of any residual funds beyond the minimum percentage to WisTAF for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.
This subsection does not prohibit the trial court from approving a settlement that does not create residual funds.
Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 2011 a. 68
; Sup. Ct. Order No. 15-06
, 2016 WI 50, filed 6-24-16, eff. 1-1-17.
The class action statute, s. 260.12 [now s. 803.08], is part of title XXV of the statutes [now chs. 801 to 823], and the scope of title XXV is restricted to civil actions in courts of record. The county board is not a court of record. The class action statute can have no application to making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 Wis. 2d 401
, 238 N.W.2d 509
(1974). But see also Townsend v. Neenah Joint School District, 2014 WI App 117
, 358 Wis. 2d 618
, 856 N.W.2d 644
The trial court did not abuse its discretion in determining that an action for damages caused by the negligent withdrawal of groundwater was not an appropriate class action. Nolte v. Michels Pipeline Const. Inc. 83 Wis. 2d 171
, 265 N.W.2d 482
The test of common interest to maintain a class action is whether all members of the purported class desire the same outcome that their alleged representatives desire. Goebel v. First Federal Savings & Loan Association, 83 Wis. 2d 668
, 266 N.W.2d 352
The maintenance of a class action involving nonresident class members does not exceed the constitutional limits of the jurisdiction of the courts of this state. The due process requisites for the exercise of jurisdiction over unnamed nonresident plaintiffs are adequate notice and representation. Schlosser v. Allis-Chalmers Corp. 86 Wis. 2d 226
, 271 N.W.2d 879
The trial court must decide if the named plaintiffs can fairly represent the common class interest that they share with the represented class and if joinder of all members is impracticable. O'Leary v. Howard Young Medical Center, 89 Wis. 2d 156
, 278 N.W.2d 217
(Ct. App. 1979).
To bring a class action: 1) there must be a common or general interest shared by all members of the class; 2) the named parties must represent the interest involved; and 3) it must be impractical to bring all interested parties before the court. Mercury Record v. Economic Consultants, 91 Wis. 2d 482
, 283 N.W.2d 613
(Ct. App. 1979).
In addition to considering the Mercury
factors, the trial court must weigh the advantages of disposing of the entire controversy in one proceeding against the difficulties of combining divergent issues and persons. Cruz v. All Saints Healthcare System, Inc. 2001 WI App 67
, 242 Wis. 2d 432
, 625 N.W.2d 344
The trial court did not err when it determined that a proposed class of “tens of thousands of presently and formerly employed hourly paid Wal-Mart employees" should not be certified because, among other reasons, the proposed class would be unmanageable, recognizing that much of the pertinent Wal-Mart payroll records were generated in the first instance by members of the proposed class and that, therefore, Wal-Mart had a right to examine each individual claimant regarding the circumstances of his or her employment, and each instance of missed break time or off-the-clock work. Hermanson v. Wal Mart Stores, Inc. 2006 WI App 36
, 290 Wis. 2d 225
, 711 N.W.2d 694
Nothing in Wisconsin law bars class action against a governmental body that is a mass action of named claimants bringing similar claims, provided that each claimant has complied with s. 893.80. Townsend v. Neenah Joint School District, 2014 WI App 117
, 358 Wis. 2d 618
, 856 N.W.2d 644
A Call to Reform: Wisconsin's Class-Action Statute. Benson, Olson, & Kaplan. Wis. Law. Sept. 2011.
Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.
Upon timely motion anyone may be permitted to intervene in an action when a movant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order or rule administered by a federal or state governmental officer or agency or upon any regulation, order, rule, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely motion may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14
. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.
Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 1975 c. 218
; 2007 a. 20
; 2015 a. 55
A postjudgment applicant for leave to intervene must show sufficient reason for having waited. Milwaukee Sewerage Commission v. DNR, 104 Wis. 2d 182
, 311 N.W.2d 677
(Ct. App. 1981).
Intervenors in an action cannot continue their claim once the original action is dismissed. Intervention will not be permitted to breathe life into a nonexistent lawsuit. Fox v. DHSS, 112 Wis. 2d 514
, 334 N.W.2d 532
A newspaper could intervene to protect the right to examine a sealed court file. State ex rel. Bilder v. Town of Delavan, 112 Wis. 2d 539
, 334 N.W.2d 252
A newspaper's postjudgment motion to intervene to open sealed court records was timely and proper. C. L. v. Edson, 140 Wis. 2d 168
, 409 N.W.2d 417
(Ct. App. 1987).
Motions to intervene are evaluated practically, and not technically, with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. There is no requirement that the intervenor's interest be judicially enforceable in a separate proceeding. Wolff v. Town of Jamestown, 229 Wis. 2d 738
, 601 N.W.2d 301
(Ct. App. 1999), 98-2974
After intervention, an intervenor's status is the same as all other parties. Once a party intervenes, all claims and defenses against it may be asserted. Kohler Co. v. Sogen International Fund, Inc. 2000 WI App 60
, 233 Wis. 2d 592
, 608 N.W.2d 746
A nonparty to a circuit court action may intervene in an appeal brought by another party, even after the time for filing a notice of appeal has passed. City of Madison v. WERC, 2000 WI 39
, 234 Wis. 2d 550
, 610 N.W.2d 94
In order to prevail, a prospective intervenor must demonstrate that: 1) the movant claims an interest relating to the property or transaction subject of the action; 2) the disposition of the action may as a practical matter impair or impede the proposed intervenor's ability to protect that interest; 3) the movant's interest will not be adequately represented by existing parties to the action; and 4) the motion to intervene was made in a timely fashion. Motions to intervene must be evaluated with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. M&I Marshall & Ilsley Bank v. Urquhart Companies, 2005 WI App 225
, 287 Wis. 2d 623
, 706 N.W.2d 335
Timeliness is not defined by statute, and there is no precise formula to determine whether a motion to intervene is timely. The question of timeliness is a determination necessarily left to the discretion of the circuit court and turns on whether, under all the circumstances, a proposed intervenor acted promptly and whether intervention will prejudice the original parties. Postjudgment motions for intervention will be granted only upon a strong showing of justification for failure to request intervention sooner. Olivarez v. Unitrin Property & Casualty Insurance Co. 2006 WI App 189
, 296 Wis. 2d 337
, 723 N.W. 2d 131
Intervention by the legislature in a case with policy or budgetary ramifications when the executive branch, through the attorney general, fulfills its traditional role defending legislation before the court is not required. Legislators may often have a preference for how the judicial branch should interpret a statute, but such mere preferences do not constitute sufficiently related or potentially impaired interests within the meaning of sub. (1). Helgeland v. Wisconsin Municipalities, 2006 WI App 216
, 296 Wis. 2d 880
, 724 N.W. 2d 208
In the context of sub. (2), “defense" conveys that the person seeking to intervene, although not named as a defendant, could be a defendant to a claim in the main action or a defendant to a similar or related claim. Sub. (3) supports this construction of “defense,"conveying that the “claim" or “defense" is more than arguments or issues a non-party wishes to address and is the type of matter presented in a pleading — either allegations that show why a party is entitled to the relief sought on a claim or allegations that show why a party proceeded against is entitled to prevail against the claim. Helgeland v. Wisconsin Municipalities, 2006 WI App 216
, 296 Wis. 2d 880
, 724 N.W. 2d 208