803.03 Annotation 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. of Wisconsin, 223 Wis. 2d 164, 588 N.W.2d 363 (Ct. App. 1998), 97-3832.

803.03 Annotation Whether a party is an “indispensable party” requires a two-part inquiry. First, it must be determined if the party is “necessary” for one of the three 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, 02-1204.

803.03 Annotation In determining what type of interest a potential party must claim in order to be deemed a necessary party under sub. (1) (b), the relevant inquiry is not whether a prospective party has a legal or legally protected interest in the subject of an action, but whether the person or entity has an interest of such direct and immediate character that the prospective party will either gain or lose by the direct operation of the judgment. Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App 259, 258 Wis. 2d 210, 655 N.W.2d 474, 02-1204.

803.03 Annotation 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 factor of whether 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 sub. (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.03 Annotation If a plaintiff is required to join a party holding a “constituent part” of a cause of action under sub. (2) (a) but fails to do so, then the unjoined subrogation, derivative, or assigned claims are deemed timely when made by the other party by virtue of the s. 802.09 (3) relation-back doctrine—as long as such claims are asserted in the original action. However, if the plaintiff is not required to join the other party’s cause of action under sub. (2) (a)—i.e., the other party’s claims do not arise by subrogation, derivation, or assignment, and therefore are 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, 372 Wis. 2d 802, 889 N.W.2d 186, 16-0034.

803.03 Annotation Sub. (1) (a) refers to relief as between the persons already parties, not as between a party and the absent person whose joinder is sought. Nelson v. Loessin, 2020 WI App 72, 394 Wis. 2d 784, 951 N.W.2d 605, 18-2448.

803.03 Annotation At the time the third-party complaint was filed by the defendants in this case, the potential parties had not engaged in negotiations with the defendants, made a demand of them, or filed suit against them. Even if the potential parties “may” have had a claim that they could potentially bring against the defendants simply by virtue of being injured in the crash that was the subject of the lawsuit, they were not actually claiming an interest related to the subject of the plaintiffs’ suit, which was required for sub. (1) (b) to apply. Nelson v. Loessin, 2020 WI App 72, 394 Wis. 2d 784, 951 N.W.2d 605, 18-2448.

803.04 803.04 Permissive joinder of parties.

803.04(1) (1) Permissive joinder. 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.

803.04(2) (2) Negligence actions: insurers.

803.04(2)(a) (a) 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.

803.04(2)(b) (b) 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.

803.04(3) (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.

803.04(4) (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.

803.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 646 (1975); 1975 c. 218; 1985 a. 37.

803.04 Cross-reference Cross-reference: See s. 632.24 as to insurers being made defendants.

803.04 Cross-reference Cross-reference: See s. 775.10 providing that the state may be made a party in an action to quiet title to land.

803.04 Annotation In an action for injuries allegedly sustained as a result of three separate surgical procedures performed by two 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 (1977).

803.04 Annotation 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 (1986).

803.04 Annotation That a policy is one of indemnity rather than liability does not prevent direct action against the insurer. Decade’s Monthly Income & Appreciation Fund v. Whyte & Hirschboeck, S.C., 173 Wis. 2d 665, 495 N.W.2d 335 (1993).

803.04 Annotation 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. of Wisconsin, 178 Wis. 2d 808, 505 N.W.2d 442 (Ct. App. 1993).

803.04 Annotation 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 (1996), 93-3182.

803.04 Annotation 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 (1996), 94-3377.

803.04 Annotation The federal compulsory counterclaim rule precluded an action against an insurer under the state direct action statute when an action directly against the insured was barred by rule. Fagnan v. Great Central Insurance Co., 577 F.2d 418 (1978).

803.04 Annotation 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 (1980).

803.04 Annotation Sub. (2) (a) is limited to negligence claims, which do not include implied warranty claims. Rich Products Corp. v. Zurich American Insurance Co., 293 F.3d 981 (2002).

803.04 Annotation 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 (1978).

803.045 803.045 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.