(3) Determination by court whenever joinder not feasible.
If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the party should join as a plaintiff but refuses to do so, the party may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in subs. (1)
cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:
To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
Whether a judgment rendered in the person's absence will be adequate; and
Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(4) Pleading reasons for nonjoinder.
A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subs. (1)
who are not joined, and the reasons why they are not joined.
(5) Exception of class actions.
This section is subject to s. 803.08
Sup. Ct. Order, 67 W (2d) 585, 643 (1975); 1975 c. 218
; 1979 c. 189
; 1983 a. 192
; 1985 a. 29
; 1989 a. 31
; 1995 a. 27
See note to 806.04, citing In Matter of Estate of Fessler, 100 W (2d) 437, 302 NW (2d) 414 (1981).
"May" as used in (2) (b) is mandatory, requiring subrogated party to choose one of the options or risk dismissal with prejudice. Radloff v. General Cas. Co. 147 W (2d) 14, 432 NW (2d) 597 (Ct. App. 1988).
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 W (2d) 585, 646 (1975); 1975 c. 218
; 1985 a. 37
As to insurers being made defendants, see s. 632.24
. See s. 775.10
, providing that the state may be made a party in an action to quiet title to land.
See note to 802.02, citing Voight v. Aetna Casualty & Surety Co. 80 W (2d) 376, 259 NW (2d) 85.
Where insurer made good-faith request for bifurcated trial under (2) (b) on issue of coverage, trial court erred in finding insurer's refusal to settle was tort of bad faith. Mowry v. Badger State Mut. Cas. 129 W (2d) 496, 385 NW (2d) 171 (1986).
That policy is one of indemnity rather than liability does not prevent direct action against insurer. Decade's Monthly Fund v. Whyte & Hirschboeck, 173 W (2d) 665, 495 NW (2d) 335 (1993).
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 W (2d) 808, 505 NW (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 W (2d) 512, 546 NW (2d) 870 (Ct. App. 1996).
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 W (2d) 74, 549 NW (2d) 690 (1996).
See note to 632.24, citing Fagnan v. Great Central Ins. Co. 577 F (2d) 418 (1978).
In order to join insurer under (2) (a), accident must have occurred in state or policy must have been issued or delivered in state. Utz v. Nationwide Mut. Ins. Co. 619 F (2d) 7 (1980).
See note to 632.24, citing Federal Deposit Ins. Co. v. MGIC Indem. Corp. 462 F Supp. 759 (1978).
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 third-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 third-party plaintiff need not obtain leave to implead if he or she serves the third-party summons and third-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 third-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make defenses to the third-party plaintiff's claim as provided in s. 802.06
and counterclaims against the third-party plaintiff and cross-claims against any other defendant as provided in s. 802.07
. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-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 third-party plaintiff. The plaintiff may assert any claim against the third-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 third-party plaintiff, and the third-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 W (2d) 585, 648 (1975); 1975 c. 218
; Sup. Ct. Order, 82 W (2d) ix (1978); Sup. Ct. Order, 141 W (2d) xiii (1987).
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 W (2d) 585, 649 (1975); Sup. Ct. Order, 73 W (2d) xxxi (1976); Sup. Ct. Order, 141 W (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 W (2d) 585, 649 (1975); 1975 c. 218
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.
History: Sup. Ct. Order, 67 W (2d) 585, 650 (1975).
Section 803.08 is inapplicable to procedure for making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 W (2d) 401, 238 NW (2d) 509.
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 W (2d) 171, 265 NW (2d) 482 (1978).
Test of common interest under 260.12, 1973 Stats., is whether all members of purported class desire same outcome of suit that their alleged representatives desire. Goebel v. First Fed. Savings & Loan Asso. 83 W (2d) 668, 266 NW (2d) 352 (1978).
Choice of law in class action based on pension rights discussed. Schlosser v. Allis-Chalmers Corp. 86 W (2d) 226, 271 NW (2d) 879 (1978).
Trial court must decide if named plaintiffs can fairly represent common class interest which they share with represented class and if joinder of all members is impracticable. O'Leary v. Howard Young Medical Center, 89 W (2d) 156, 278 NW (2d) 217 (Ct. App. 1979).
Procedural aspects of class action suits discussed. Mercury Record v. Economic Consultants, 91 W (2d) 482, 283 NW (2d) 613 (Ct. App. 1979).
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 W (2d) 585, 650 (1975); 1975 c. 218
Postjudgment applicant for leave to intervene must show sufficient reason for having waited. Milwaukee Sewerage Commission v. DNR, 104 W (2d) 182, 311 NW (2d) 677 (Ct. App. 1981).
See note to 227.53, citing Fox v. DHSS, 112 W (2d) 514, 334 NW (2d) 532 (1983).
See note to 59.20, citing State ex rel. Bilder v. Delavan Tp. 112 W (2d) 539, 334 NW (2d) 252 (1983).
Newspaper's postjudgment motion to intervene to open sealed court records was timely and proper. C. L. v. Edson, 140 W (2d) 168, 409 NW (2d) 417 (Ct. App. 1987).
Substitution of parties. 803.10(1)(a)(a)
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14
and upon persons not parties in the manner provided in s. 801.11
for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
If a party becomes incompetent, the court upon motion served as provided in sub. (1)
may allow the action to be continued by or against the incompetent party's representative.
(3) Transfer of interest.
In case of any transfer of interest, the action may be continued by or against the original party unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in sub. (1)
(4) Public officers; death or separation from office. 803.10(4)(a)(a)
When a public officer, including a receiver or trustee appointed by virtue of any statute, is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
When a public officer sues or is sued in an official capacity, the public officer may be described as a party by the official title rather than by name; but the court may require the officer's name to be added.
(5) Death after verdict or findings.
After an accepted offer to allow judgment to be taken or to settle pursuant to s. 807.01
, or after a verdict, report of a referee or finding by the court in any action, the action does not abate by the death of any party, but shall be further proceeded with in the same manner as if the cause of action survived by law; or the court may enter judgment in the names of the original parties if such offer, verdict, report or finding be not set aside. But a verdict, report or finding rendered against a party after death is void.
Sup. Ct. Order, 67 W (2d) 585, 652 (1975); 1975 c. 200
; 1993 a. 486
Letter to court and opposing counsel stating that plaintiff had died wasn't "suggestion of death" under (1) (a). Wheeler v. General Tire & Rubber Co., 142 W (2d) 798, 419 NW (2d) 331 (Ct. App. 1987).
"Suggestion of death" which failed to identify proper party to substitute for deceased didn't trigger running of 90-day period. Wick v. Waterman, 143 W (2d) 676, 421 NW (2d) 872 (Ct. App. 1988).