Bins v. Artison

764 F. Supp. 129, 1991 U.S. Dist. LEXIS 6814, 1991 WL 87321
CourtDistrict Court, E.D. Wisconsin
DecidedMay 20, 1991
DocketNo. 88-C-636
StatusPublished
Cited by1 cases

This text of 764 F. Supp. 129 (Bins v. Artison) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bins v. Artison, 764 F. Supp. 129, 1991 U.S. Dist. LEXIS 6814, 1991 WL 87321 (E.D. Wis. 1991).

Opinion

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The above-captioned action has been returned to this court following the unsuccessful appeal of defendants Richard Arti-son, Sheriff of Milwaukee County, and James Pinter, a Milwaukee County deputy sheriff, from an adverse judgment. Defendants Jerome Casper and Rowell’s Towing Service (hereafter collectively referred to as a single entity, “Rowell’s Towing Service”), who successfully defended their judgment on appeal, have now filed a “Motion to Award Judgment for Attorney Fees and Costs Incurred on Appeal and Interest on Judgment.” The motion will be granted.

I.

On September 11, 1989, following a bench trial, judgment was entered awarding the plaintiff, John Bins, $6,600 in damages under 42 U.S.C. § 1983, see Bins v. Artison, 721 F.Supp. 1034 (E.D.Wis.1989) (decision and order). On December 20, 1989, the judgment was amended to reflect the court’s finding that defendants Artison and Pinter, who had been sued in their official capacities as officers of Milwaukee County, were obligated to indemnify defendant Rowell’s Towing Service for the legal fees incurred in the unsuccessful defense of the action, under Wis.Stat. § 895.46(l)(a). Defendants Artison and Pinter then appealed. On February 4, 1991, the court of appeals for the seventh circuit issued an unpublished order affirming the portion of the judgment that required defendants Artison and Pinter to indemnify Rowell’s Towing Service.

In affirming the judgment, the court of appeals issued the following assessment of this court’s decision to require defendants Artison and Pinter to indemnify Rowell’s Towing Service under Wis.Stat. § 895.46(1):

... Artison and Pinter insist that Casper and his firm did not comply with Wis. Stat. § 893.80(1), which requires a person seeking money from a governmental body to file timely notice and make a formal “claim”.
Perhaps these hurdles would bar recovery under that law, but § 893.80 was not the basis of the district court’s award. Another statute, § 895.46(l)(a), says that “[rjegardless of the results of the litigation [against a public official] the governmental unit, if it does not provide legal counsel to the defendant officer or employee, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employe did not act within the scope of employment.” This operates independently of § 893.80. Section 895.46 contains its own notice rule: “Failure by the officer or employee to give notice to his or her department head of an action ... as soon as reasonably possible is a bar to recovery ...”. Unsurprisingly, Artison does not invoke this statute. He is the department head, and it was he who added Casper to the case.
Milwaukee County required Casper and firm [Rowell’s Towing Service] to defend themselves, and they demand recompense under § 895.46. Although this text mentions only an “officer or employe”, the immediately preceding sentence says that “[a]gents of any department of the state shall be covered by this section while acting within the scope of [131]*131their agency.” This means that agents are treated as if they were officers or employees under the section.
Milwaukee insists, however, that Cas-per and the towing service were not its agents, and at all events were not agents “of any department of the state”. The district court resolved the former issue against the County on the facts. The record shows that Casper towed the car at the express request of a deputy sheriff and held it at the County’s disposal. There is apparently a longstanding pattern of cooperation. Casper sold the car only when no one would pay accumulated charges. The conclusion that he was an “agent” of the sheriff, and hence of the County, is not clearly erroneous.
All that is left is the contention that Casper was an agent of the County and not of “any department of the state”. The district judge, steeped in Wisconsin law as we are not, read this language differently. No state case construes § 895.46 as applied to agents’ claims for legal fees, so the only opinion we have to go on is the district judge’s, and we have no basis for doubting the reading by this former member of the Supreme Court of Wisconsin. Judge Gordon concluded that political subdivisions of Wisconsin are “departments” of the state in the pertinent sense. This is sensible. Section 895.46 requires indemnification of state and local employees. It would serve no purpose (Milwaukee suggests none) to confine the coverage of agents to those engaged by statewide departments. Other portions of the text sound as if the subsection is limited to state officials, see especially the last sentence of § 895.46(1)(A), yet the first sentence unambiguously provides that the “state or political subdivision of which the defendant is an officer or employee” (emphasis added) must satisfy the judgment. We therefore agree with the district court that Casper was an agent of “a department of the state” within the meaning of § 895.46(l)(a).

Bins v. Artison, 924 F.2d 1061 (7th Cir.1991) (unpublished order), affirming in part and vacating in part, 721 F.Supp. 1034 (E.D.Wis.1989).

II.

Defendants Artison and Pinter are obligated to indemnify Rowell’s Towing Service under Wis.Stat. § 895.46(1) for the attorney’s fees and costs it incurred in the defense of this action at trial. Indeed, the mandate of the court of appeals (with emphasis added) provides that Milwaukee County is obligated to pay the legal fees Casper and Rowell’s Central Towing incurred in defending this action.”

However, the appeal of defendants Arti-son and Pinter created still more legal expenses for Rowell’s Towing Service, which “had no choice but to incur [additional attorney’s fees and costs] or forfeit [its] victory in the district court.” Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.1988). Accordingly, the court finds that Rowell’s Towing Service’s legal fees incurred in defending the appeal are also properly viewed as legal fees “incurred in defending this action.” Wis.Stat. § 895.46(1). Defendants Artison and Pinter have been unable to direct the court to any authority demonstrating that Wis.Stat. § 895.46(1) does not apply to “reasonable attorney fees and costs of defending the action” on appeal. Nor have defendants Artison and Pinter suggested that such a ruling would contravene the mandate of the court of appeals. Therefore, the court concludes that Ro-well’s Towing Service is entitled to recover from defendants Artison and Pinter “reasonable attorney fees and costs of defending the action” on appeal, just as it was at trial.

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Bluebook (online)
764 F. Supp. 129, 1991 U.S. Dist. LEXIS 6814, 1991 WL 87321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bins-v-artison-wied-1991.