Supreme Court Oral Arguments – October 2019

The Wisconsin Supreme Court is in the midst of a busy month of oral arguments. Cases heard this month include the second case litigating the 2018 extraordinary session legislation, insurance issues, employee wages, and misrepresentation claims.


Hinrichs v. DOW Chemical Co. (Fraudulent Representation) – Oct. 3

This case involves a dispute between a manufacturer and a supplier over a failing product. Plaintiffs alleged claims of negligent misrepresentation, intentional misrepresentation, strict responsibility misrepresentation, and violation of Wisconsin’s fraudulent representations statute (Wis. Stat. § 100.18). The appeals court dismissed misrepresentation claims based on the “economic loss doctrine,” which provides that plaintiffs cannot sue to recover solely economic losses from the nonperformance of a contract, but the court remanded for further discussion on whether plaintiffs could file the fraudulent representation claim.

The Supreme Court will clarify who is a member of “the public” eligible to file a fraudulent representation claim under Wis. Stat. § 100.18. Specifically, the court will determine whether plaintiffs can file 100.18 claims against entities with which they have a commercial relationship. The court will also address the scope of the economic loss doctrine in misrepresentation claims.

Read more about the case.


SEIU v. Vos (2018 Extraordinary Session) – Oct. 21

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the laws passed in the 2018 extraordinary session are an unconstitutional violation of the separation of powers doctrine. The Supreme Court will review whether provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional power and whether committee oversight without opportunity for a governor veto violates constitutional separation of powers.

In June, the Supreme Court granted the defendant Legislature’s motion for temporary relief pending appeal by staying the temporary injunction on the laws issued by the Dane County Circuit Court.

This case is one of several challenging the 2018 extraordinary session laws. Read more about the extraordinary session litigation.


Choinsky v. Germantown School District (Duty to Defend) – Oct. 28

The Supreme Court will review the court of appeals decision holding that insurers did not breach their duty to defend when they did not immediately accept the defense of their insured. The underlying issue in this case involved a group of retired teachers who filed a lawsuit against their school district for breach of contract following the enactment of 2011 Act 10. The district tendered its defense to its insurers, Employers Insurance Company of Wausau and Wausau Business Insurance Company. The appeals court ruled that the insurers’ waiting to defend the merits lawsuit until the circuit court decided on a coverage dispute was not a breach of the insurers’ duty to defend. Read more about the case.


Piper v. Jones Dairy Farm (Donning & Doffing Compensation) – Oct. 28

The Supreme Court will determine whether employees’ donning and doffing activities are compensable under state law and whether such compensation is precluded by their collective bargaining agreements.

Plaintiffs are employees of Jones Dairy Farm seeking compensation for time spent putting on and removing safety shoe covers, frocks, hairnets, etc. before and after their shifts. Compensation for donning and doffing was not included in multiple collective bargaining agreements between the employees’ union and Jones Dairy.

Jones Dairy argues that the plaintiffs bargained away their right to compensation for donning and doffing in the collective bargaining agreements. Furthermore, Jones Dairy does not owe the employees compensation because the time spent changing before and after shifts is de minimis.