Selzler v. Dresser, Osceola, Garfield Fire Department

415 N.W.2d 546, 141 Wis. 2d 465, 1987 Wisc. App. LEXIS 4055
CourtCourt of Appeals of Wisconsin
DecidedSeptember 15, 1987
Docket86-1765
StatusPublished
Cited by2 cases

This text of 415 N.W.2d 546 (Selzler v. Dresser, Osceola, Garfield Fire Department) 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
Selzler v. Dresser, Osceola, Garfield Fire Department, 415 N.W.2d 546, 141 Wis. 2d 465, 1987 Wisc. App. LEXIS 4055 (Wis. Ct. App. 1987).

Opinion

MYSE, J.

The Dresser, Osceola, Garfield Fire Department appeals a judgment permitting each plaintiff to recover up to $150,000 against the fire department. The fire department contends that the trial court misinterpreted sec. 893.80(3), Stats., by holding that the liability limitation applied to each governmental unit that had formed the fire department. We agree. Because the joint fire department is one governmental agency under sec. 893.80(3), and recovery for each plaintiff is therefore limited to $50,000, we reverse.

The Towns of Garfield and Osceola and the Village of Dresser formed the Dresser, Osceola, and *468 Garfield Rural Fire Association, a volunteer fire department, pursuant to sec. 60.29(18)(a), Stats. 1 The fire department is operated by a board consisting of the two town chairmen, the village president, and two members from each of the town boards and village trustees. The board supervises the fire department’s financial matters, determines its financial needs, and may request the municipalities to levy up to one mill in taxes to finance the department’s operation. In the event the tax levy exceeds one mill, the department must prepare a budget and present it to each of the municipalities for approval. If the majority of municipalities approve the budget, the levy is binding upon all three municipalities.

The fire department responded to a call involving a brush fire on land used by Edward Selzler and owned by his son. At the fire, the department cut down a burning tree. During the cutting process, a portion of the tree top broke off and hit Edward Selzler causing him extensive injuries.

Edward and Ruth Selzler sued the fire department for negligence. The jury found the fire department sixty percent causally negligent and Selzler forty percent causally negligent, and allocated damages.

In response to motions after verdict, the trial court applied sec. 893.80(3) to determine the governmental liability limitations. Section 893.80(3) provides in relevant part:

The amount recoverable by any person for any damages, injuries, or death in any action founded *469 on tort against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employes for acts done in their official capacity or in their course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000, except that the amount recoverable shall not exceed $25,000 in any such action against a volunteer fire company organized under ch. 213 or its officers, officials, agents or employes. If the volunteer fire company is part of a combined fire department, the $25,000 limit still applies to actions against the volunteer fire company or its officers, officials, agents or employes.

The trial court first determined that the Dresser, Osceola, Garfield Fire Department was not a volunteer fire company organized under ch. 213, Stats., and that the liability limits applying to such fire companies did not apply. The trial court then concluded that under sec. 893.80(3) the liability limitation applied to each governmental unit that had formed the fire department and thereby permitted each plaintiff to recover up to $150,000 from the fire department.

The dispositive issue on appeal is whether the joint fire department formed pursuant to ch. 60, Stats., is subjected to three times the municipal tort liability limitation of sec. 893.80(3) by virtue of the three municipalities creating it. This issue is one of statutory construction raising a question of law. Bonn v. Haubrich, 123 Wis. 2d 168, 171-72, 366 N.W.2d 503, 505 (Ct. App. 1985). Therefore, we owe no deference to the trial court’s determination. Id.

Selzler argues that sec. 893.80(3) is ambiguous and that we should construe the phrase "governmental subdivision or agency thereof’ as a liability *470 limitation for governmental subdivisions whose agents are guilty of negligence. He contends that the limitation established by the statute does not apply to the fire department, but rather to each governmental subdivision whose agents are found negligent under the respondeat superior doctrine. He argues that since the fire department is an agent of all three governmental units, there are three governmental unit limits of liability available to Edward and Ruth Selzler.

The threshold question when construing a statute is whether the statutory phrase is ambiguous. See State v. Engler, 80 Wis. 2d 402, 406, 259 N.W.2d 97, 99 (1977). When statutory language is plain and unambiguous, interpretation is unnecessary. Id. "Ambiguity” arises when more than one reasonable, although not necessarily correct, meaning can be attributed to a word or phrase in the statute. West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 418-19, 342 N.W.2d 415, 420 (1984). Absent any statutory definition, the meaning of nontechnical words may be ascertained from a recognized dictionary. State v. Wittrock, 119 Wis. 2d 664, 669, 350 N.W.2d 647, 650 (1984).

With the above principles in mind, we conclude that sec. 893.80(3) is ambiguous. This section could be interpreted to limit liability to $50,000 for joint fire departments created by multiple municipalities. Since the word "agency” is defined as "an administrative division (as of a government),” the phrase "governmental subdivision or agency thereof’ would refer to an organization created by governmental subdivisions. See Webster’s Third New International Dictionary, 8 (1976). However, the word "agency” can also mean a *471 person or thing through which power is exerted or/and achieved” in the sense of respondeat superior. Id. Consequently, sec. 893.80(3) could also be interpreted to require that the liability limit be a multiple of the number of municipalities creating the organization. Because of these conflicting interpretations, we conclude that this statute is ambiguous.

When a statute is ambiguous, we must ascertain legislative intent from the statute’s language in relation to its scope, history, context, and object intended to be accomplished. County of Milwaukee v. Proegler, 95 Wis. 2d 614, 625-26, 291 N.W.2d 608, 613 (Ct. App. 1980). In determining the legislature’s intent, we presume that the legislature intended an interpretation that advances the purpose of the statute. State v. Ziekele, 137 Wis. 2d 39, 46, 403 N.W.2d 427, 430 (1987).

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415 N.W.2d 546, 141 Wis. 2d 465, 1987 Wisc. App. LEXIS 4055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selzler-v-dresser-osceola-garfield-fire-department-wisctapp-1987.