Heritage Farms, Inc. v. Markel Insurance

2011 WI App 12, 793 N.W.2d 896, 331 Wis. 2d 64
CourtCourt of Appeals of Wisconsin
DecidedDecember 2, 2010
DocketNo. 2010AP355
StatusPublished
Cited by2 cases

This text of 2011 WI App 12 (Heritage Farms, Inc. v. Markel Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heritage Farms, Inc. v. Markel Insurance, 2011 WI App 12, 793 N.W.2d 896, 331 Wis. 2d 64 (Wis. Ct. App. 2010).

Opinion

SHERMAN, J.

¶ 1. Heritage Farms, Inc. appeals a judgment and an order of the circuit court denying its request for double damages under Wis. Stat. § 26.21(1) (2007-08),1 and his request for interest on any award of double damages and on the legal fees and costs incurred to obtain such damages. Heritage Farms argues § 26.21 mandates that double damages be awarded in situations where a private owner's property is destroyed by a forest fire which occurred though negligence, or in the [68]*68alternative creates a presumption in favor of double damages. We disagree and affirm.

BACKGROUND

¶ 2. This appeal follows a remand from the supreme court to the circuit court. See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, 316 Wis. 2d 47, 762 N.W.2d 652. The relevant facts are found in the supreme court's decision:

Between March 3 and March 8, 2003, Jeffrey Knaack ignited a large debris pile, which consisted of leaves, pine needles, brush, stumps, and building materials. Knaack was responsible for maintaining this burn pile at the Lake of the Woods Campground as a favor to Jack Scimeca who owned the property and operated the business. On April 14, 2003, the March burn pile fire escaped the Lake of the Woods Campground, and as a result, burned 572 acres of land.
Heritage Farms filed a civil action against the defendants (hereinafter referred to as "Markel") claiming negligence, trespass, and nuisance. Heritage Farms sought double compensatory damages and attorney fees pursuant to Wis. Stat. § 26.21(1). Markel moved the court for partial summary judgment asserting that § 26.21(1) did not apply because none of the defendants were a railroad corporation and none had violated Wis. Stat. § 26.20. The circuit court granted that motion and concluded that § 26.21(1) applies only to railroad corporations. After a four week jury trial, a verdict was returned that awarded Heritage Farms $568,422 in damages. Heritage Farms subsequently moved the circuit court to reconsider its previous ruling regarding the applicability of § 26.21(1). The circuit court denied Heritage Farms' motion to reconsider. Heritage Farms appealed that ruling and the court of appeals affirmed the circuit court. The court of appeals concluded that [69]*69§ 26.21(1) applied only to railroad corporations and did not decide the issue of whether "gross negligence" was required. Heritage Farms petitioned [the supreme] court for review, which [the court] accepted.

Id., ¶¶ 3-4 (footnotes omitted).

¶ 3. On petition for further review, the supreme court reversed the court of appeal's decision. The supreme court in Heritage II concluded that Wis. Stat. § 26.21(1) "is not limited to a specific class of tortfeasor such as a railroad corporation, and a violation under Wis. Stat. § 26.20 is not a prerequisite for the applicability of § 26.21(1)." Id., ¶ 2. The court further concluded that § 26.21(1) "does not require a showing of 'gross negligence,'" an issue not addressed by either the circuit court or court of appeals. Id., ¶¶ 2, 4.

¶ 4. On remand, Heritage Farms moved the circuit court for an award pursuant to Wis. Stat. § 26.21(1) of double the compensatory damages and reasonable costs for legal representation, as well as twelve percent interest on the doubled portion of the damages and costs of legal representation from October 13, 2006, the date of the original verdict, until those costs are paid. The circuit court granted Heritage Farms' request for actual attorney's fees and costs it incurred, but denied its request for double damages and twelve percent interest. The court reasoned that the present case did not present a situation in which the court should exercise its discretion and double the compensatory damage award.

¶ 5. Heritage Farms moved the circuit court for reconsideration. The court denied Heritage Farms' motion. The court explained that it did not "think there's a mandate that all negligent tortfeasors be punished for starting forest fires" and that it did not believe that Knaack needed to be punished. Heritage Farms appeals.

[70]*70DISCUSSION

¶ 6. Heritage Farms contends the circuit court erred in ruling that an award of double damages in this case was not mandatory under Wis. Stat. § 26.21(1) and in denying its request for twelve percent interest. We address each argument in turn.

A. Double Damages under Wis. Stat. § 26.21(1)

¶ 7. Wisconsin Stat. § 26.21(1) provides that the owner of private property "injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence." (Emphasis added.) Heritage Farms contends that the word "may" in § 26.21(1) should be construed as "shall" and that once a legal determination has been made that a forest fire occurred through willfulness, malice, or negligence, a circuit court must, by operation of law, award double damages to a private property owner under § 26.21(1).

¶ 8. Heritage Farms argues that:

the "may recover . . . double damages" language is contingent only upon a finding that the forest fire occurred through willfulness, malice or negligence. Once the "if is satisfied, i.e., once there is a determination by the finder of fact that the person . .. causing a forest fire did so willfully, maliciously, or negligently, an award of double damages follows as a matter of course. (Footnote omitted.)

It argues that construing "may" as "shall" fulfills the legislative intent underlying Wis. Stat. ch. 26, which is "to punish those who set forest fires whether willfully, maliciously or negligently." See Heritage Farms II, 316 [71]*71Wis. 2d 47, ¶ 41. It further argues § 26.21(1) imposes a penalty and, as a result, the double damages provision should be held mandatory.

¶ 9. "Whether a statute is mandatory or discretionary is a matter of statutory construction," which presents a question of law reviewed de novo by this court. In the interest of F.T. v. State, 150 Wis. 2d 216, 221, 441 N.W.2d 322 (Ct. App. 1989). The word "may" in a statute is generally construed as permissive unless a different construction is required by the statute to carry out the clear intent of the legislature. City of Wauwatosa v. Milwaukee County, 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963).

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Heritage Farms, Inc. v. Markel Insurance
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Bluebook (online)
2011 WI App 12, 793 N.W.2d 896, 331 Wis. 2d 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heritage-farms-inc-v-markel-insurance-wisctapp-2010.