(5) Exception of class actions.
This section is subject to s. 803.08
When the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but failure to do so at the trial level was cured by service at the appellate level. In Matter of Estate of Fessler, 100 Wis. 2d 437
, 302 N.W.2d 414
Sub. (2) (b) requires a subrogated party to choose one of the listed options or risk dismissal with prejudice. Radloff v. General Casualty Co. 147 Wis. 2d 14
, 432 N.W.2d 597
(Ct. App. 1988).
The mere presence of a party does not constitute “participation" under sub. (2) (b). A subrogated insurer who exercises none of the 3 options under sub. (2) (b) must pay its fair share of attorney fees and costs if it has notice of and does nothing to assist in the prosecution of the action. Ninaus v. State Farm Mutual Automobile Insurance Co. 220 Wis. 2d 869
, 584 N.W.2d 545
(Ct. App. 1998), 97-0191
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. 223 Wis. 2d 164
, 588 N.W.2d 363
(Ct. App. 1998), 97-3832
Whether a party is an “indispensable party" requires a 2-part inquiry. First it must be determined if the party is “necessary" for one of the 3 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
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 requirement that 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 s. 803.03 (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9
, 307 Wis. 2d 1
, 745 N.W.2d 1
If the plaintiff was required to join a party holding a “constituent part” of a cause of action under sub. (2) (a), but failed to do so, then the unjoined subrogation, derivative, or assigned claims were deemed timely when made by the other party by virtue of the s. 802.09 (3) relation-back doctrine — as long as such claims were asserted in the original action. However, if the plaintiff was not required to join the other party's cause of action under sub. (2) (a) — i.e., the other party's claims did not arise by subrogation, derivation, or assignment, and therefore were 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
Permissive joinder of parties. 803.04(1)(1)
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.
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.
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.
(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.
(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.
Sup. Ct. Order, 67 Wis. 2d 585, 646 (1975); 1975 c. 218
; 1985 a. 37
See s. 632.24
as to insurers being made defendants.
See s. 775.10
providing that the state may be made a party in an action to quiet title to land.
In an action for injuries allegedly sustained as a result of 3 separate surgical procedures performed by 2 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
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
That a policy is one of indemnity rather than liability does not prevent direct action against the insurer. Decade's Monthly Fund v. Whyte & Hirschboeck, 173 Wis. 2d 665
, 495 N.W.2d 335
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. 178 Wis. 2d 808
, 505 N.W.2d 442
(Ct. App. 1993).
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
(Ct. App. 1996), 93-3182
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
The federal compulsory counterclaim rule precluded an action against an insurer under the state direct action statute when the action directly against the insured was barred by rule. Fagnan v. Great Central Insurance Co. 577 F.2d 418
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
Sub. (2) (a) is limited to negligence claims, which do not include implied warranty claims. Rich Products Corporation v. Zurich American Insurance Co. 293 F.3d 981
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
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.
In an action on an obligation described in s. 766.55 (2) (a)
, a creditor may proceed against the spouse who is not the obligated spouse or the incurring spouse if the creditor cannot obtain jurisdiction in the action over the obligated spouse or the incurring spouse.
After obtaining a judgment, a creditor may proceed against either or both spouses to reach marital property available for satisfaction of the judgment.
This section does not affect the property available under s. 766.55 (2)
to satisfy the obligation.
History: 1985 a. 37
Third-party practice. 803.05(1)(1)
At any time after commencement of the action, a defending party, as a 3rd-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the defending party for all or part of the plaintiff's claim against the defending party, or who is a necessary party under s. 803.03
. The 3rd-party plaintiff need not obtain leave to implead if he or she serves the 3rd-party summons and 3rd-party complaint not later than 6 months after the summons and complaint are filed or the time set in a scheduling order under s. 802.10
; thereafter, the 3rd-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and 3rd-party complaint, hereinafter called the 3rd-party defendant, shall make defenses to the 3rd-party plaintiff's claim as provided in s. 802.06
and counterclaims against the 3rd-party plaintiff and cross claims against any other defendant as provided in s. 802.07
. The 3rd-party defendant may assert against the plaintiff any defenses which the 3rd-party plaintiff has to the plaintiff's claim. The 3rd-party defendant may also assert any claim against the plaintiff if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff's claim against the 3rd-party plaintiff. The plaintiff may assert any claim against the 3rd-party defendant if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff's claim against the 3rd-party plaintiff, and the 3rd-party defendant thereupon shall assert defenses as provided in s. 802.06
and counterclaims and cross claims as provided in s. 802.07
When a counterclaim is asserted against a plaintiff, the plaintiff may cause a 3rd party to be brought in under circumstances which under this section would entitle a defendant to do so.
Oral argument permitted on motions under this section may be heard by telephone under s. 807.13 (1)
Sup. Ct. Order, 67 Wis. 2d 585, 648 (1975); 1975 c. 218
; Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2005 a. 253
; 2007 a. 97
Judicial Council Committee's Note, 1977: Sub. (1) has been amended to allow a third-party plaintiff to serve the third-party summons and third-party complaint without leave of the court to implead if the third-party summons and third-party complaint are filed not later than 6 months after the summons and complaint in the original action are filed. The new six-month time period has been created since the old time period allowing a third-party plaintiff to file a third-party summons and third-party complaint without the need to obtain leave to implead during the time set in a scheduling order under s. 802.10 can no longer apply in most cases. The use of such a scheduling order is now completely discretionary with the trial judge. [Re Order effective July 1, 1978]
Judicial Council Note, 1988: Sub. (3) [created] allows oral argument permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Misjoinder and nonjoinder of parties. 803.06(1)(1)
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Oral argument permitted on motions under this subsection may be heard by telephone under s. 807.13 (1)
When it comes to the attention of the court that the summons has not been served upon a named defendant, the court may enter an order on its own initiative, after notice to parties of record, dismissing the action as to that defendant without prejudice.
History: Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
Judicial Council Committee's Note, 1976: Sub. (2) establishes an efficient procedure for dismissing an action against a defendant who has not been served. It will help alleviate situations such as clouds on title that could result from a summons that was not served being on file with the clerk of court. [Re Order effective Jan. 1, 1977]
Judicial Council Note, 1988: Sub. (1) is amended to permit oral argument on motions to drop or add parties to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in s. 803.04
Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); 1975 c. 218
; 2007 a. 97
One or more members of a class may sue or be sued as representative parties on behalf of all members only if the court finds all of the following:
The class is so numerous that joinder of all members is impracticable.
There are questions of law or fact common to the class.
The claims or defenses of the representative parties are typical of the claims or defenses of the class.
The representative parties will fairly and adequately protect the interests of the class.
(2) Types of class actions.
A class action may be maintained if sub. (1)
is satisfied and if the court finds that any of the following are satisfied:
Prosecuting separate actions by or against individual class members would create a risk of either of the following:
Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.
Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.
The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include all of the following:
The class members' interests in individually controlling the prosecution or defense of separate actions.
The extent and nature of any litigation concerning the controversy already begun by or against class members.
The desirability or undesirability of concentrating the litigation of the claims in the particular forum.
Time to issue.
At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
Defining the class; appointing class counsel.
An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under sub. (12)
Altering or amending the order.
An order that grants or denies class certification may be altered or amended before final judgment.
For sub. (2) (a) or (b) classes.
For any class certified under sub. (2) (a)
, the court may direct appropriate notice to the class.
For sub. (2) (c) classes.
For any class certified under sub. (2) (c)
, the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language, all of the following:
That a class member may enter an appearance through an attorney if the member so desires.
That the court will exclude from the class any member who requests exclusion.
Whether or not favorable to the class, the judgment in a class action must do one of the following:
For any class certified under sub. (2) (a)
, include and describe those whom the court finds to be class members.
For any class certified under sub. (2) (c)
, include and specify or describe those to whom the notice under sub. (4)
was directed, who have not requested exclusion, and whom the court finds to be class members.
(6) Particular issues.
Notwithstanding ss. 805.05 (2)
and 805.09 (2)
, when appropriate, an action may be brought or maintained as a class action with respect to particular issues.
When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
In conducting an action under this section, the court may issue orders that do any of the following:
Determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument.