Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Plaintiff was struck by the balloon before the ride occurred. Defendant admitted he screwed up so it helped the court prove they should be liable.

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

State: Wisconsin, Supreme Court of Wisconsin

Plaintiff: Patti J. Roberts and David Roberts

Defendant: T.H.E. Insurance Company, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson

Plaintiff Claims: Negligence

Defendant Defenses: Recreational Use Statute & Release

Holding: for the Plaintiff

Year: 2016

This is a crazy set of facts that created this decision. The defendants were providing balloon rides at an event to support a fund-raiser for a charity. No charge was being made for the rides. The balloon was tethered to two trees and a truck and was raised and lowered with people wanting a ride in the balloon basket.

The plaintiff and her family decided to go for a ride. The plaintiff signed the release and was waiting in line for her ride. One of the tethers’s holding the balloon broke and the plaintiff was struck by the balloon.

The plaintiff had not given her release back to the balloon operator before she was struck. The release was found on the ground after her injury.

The trial court, called the circuit court in Wisconsin, had granted the defendant’s motion for summary judgment, which was upheld by the Wisconsin court of Appeals. The basis of the motion for summary judgment was the release and the Wisconsin Recreational Use Statute.

Analysis: making sense of the law based upon these facts.

The court started by pointing out some fairly damaging facts. The Federal Aviation Administration, which governs hot-air ballooning requires balloon operators to have a backup plan if a tether breaks and to keep people far back from the balloon when giving tethered rides. The balloon pilot admitted he did not check the weather, did not have a safety plan and did not keep people far enough away from the balloon.

The evidence submitted to the circuit court demonstrated that defendant Kerry Hanson, the balloon operator, had limited experience with tethered ballooning before giving rides at Green Valley’s event. Hanson testified in his deposition that he should have obtained information regarding weather fronts in the area. Had he known about the weather front on the day Roberts was injured, Hanson testified that he would have suspended the ride.

The first defense raised by the defendant was whether or not the defendant could take advantage of the Wisconsin Recreational Use Statute. The plaintiff argued that the statute could not protect the defendant because her injury was not related to the land or a condition associated with the land. The defendant argued he was providing a recreational service on land for no charge.

Everyone agreed that the plaintiff was on the land to engage in recreational activities.

Given that Roberts was on recreational land open to the public, watching the balloon rides as a spectator, and preparing for the balloon ride by waiting in line, she was engaged in a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g).

However, the court interpreted the Wisconsin Recreational Use Statute to cover land owners. The defendant balloon operation was not an owner or the land. Owner, under Statute, means an owner, occupier, tenant, etc., of the land.

Nor was the balloon a structure that would qualify as an occupier on the land, and covered by the statute since it could be gathered up and moved.

Here, it was Green Valley and the Conservationists—- not Sundog—-that were responsible for opening the land to the public. The Conservationists allowed Green Valley to host an event on the land. Green Valley was responsible for organizing the event and bringing people onto the land. Sundog provided hot air balloon rides on land that was owned by the Conservationists and occupied by Green Valley. Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.

The court found there was a difference between opening up your land to allow recreation and allowing third parties on the land to take advantage of the statute. “Granting immunity to third parties that are not responsible for opening up the land to the public is unsupported by our prior case law.” That means negligent conduct that occurs on the land but not associated with the land is not protected by the statute.

The court then looked at the release. It did not get at the issue as to whether the plaintiff has accepted the terms of the release even though she had signed the release but not given it back to the defendant.

The court looked at the rules for releases, or exculpatory agreements, under Wisconsin law. “This court has found an exculpatory agreement to be invalid if it contains misrepresentations, if it too broadly defines the location and actions covered, or if it is ambiguous and uncertain.”

A release has been held to be void under Wisconsin law if:

(1) the contract served two purposes which were not clearly identified or distinguished; (2) the release was extremely broad and all-inclusive; and (3) the release was in a standardized agreement printed on the Company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining.

Releases are also void if they fail to:

(1) it failed to clearly, unambiguously, and unmistakably explain to the signatory that he was accepting the risk of Hidden Valley’s negligence; and (2) the form when considered in its entirety failed to alert the signer to the nature and significance of the document being signed.

Finally releases can be void if:

(1) the waiver was overly broad and all-inclusive; (2) the form served two functions and did not provide the signer adequate notification of the waiver’s nature and significance; and (3) there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question.

The court found the defendants release was “overly broad and all-inclusive.” The court explained was this was a problem. “As our prior cases have explained, an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.”

The release was also void because it covered both known and unknown risks. “The waiver in this case would absolve Sundog for any activity for any reason, known or unknown….”

Not only is the waiver overly broad, it is not clear whether waiting in line for the ride is something Roberts would have contemplated as being covered by the waiver, especially because she was not required to return the waiver before she got into the line.

(How can a release be void because it is overly broad and then have the court determine it’s not clear if the overly broad release covers the incident the plaintiff suffered?)

Because the release offered no opportunity for the plaintiff to negotiate the terms, the release was also void.

Second, the release was a standard agreement printed on the company’s form, offering Roberts no opportunity to bargain or negotiate in regard to the exculpatory language in question. “Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity.”

The court simply concluded the release was void for those reasons.

Thus, the liability waiver form is void as a matter of law. It is overly broad, printed on a standard form, and Sundog did not provide Roberts with an opportunity to bargain over the terms of the contract. As our prior case law demands, we will not uphold a waiver of liability that violates public policy.

There were numerous concurring opinions and dissenting opinions in this decision. One judge wrote a concurring opinion looking at the language of the Recreational Use Statute. Three judges dissented based on the recreational Use Statute. Both dissenting judges each wrote a dissenting opinion.

So Now What?

Although the court legally did not void all releases, functionally the court did. Providing an opportunity for the guest to negotiate the release will add months to any process of getting the release signed. You might try a two-tiered approach.  You can pay one price for the standard release, or you can pay five times that price for an assumption of the risk form.

You also might narrow the scope of the release to just a few incidents; however, you still have the requirement to bargain the release.

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Wisconsin Recreational Use Statute

Wisconsin Recreational Use Statute

Chapter 895.  Damages, Liability, and Miscellaneous Provisions Regarding Actions in Courts 

Subchapter II Exemptions From, and Limitations On, Liability

Go to the Wisconsin Code Archive Directory

Wis. Stat. § 895.52  (2016)

895.52.  Recreational activities; limitation of property owners’ liability.

(1) DEFINITIONS.

In this section:

            (ag) “Agricultural tourism activity” means an educational or recreational activity that takes place on a farm, ranch, grove, or other place where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised, and that allows visitors to tour, explore, observe, learn about, participate in, or be entertained by an aspect of agricultural production, harvesting, or husbandry that occurs on the farm, ranch, grove, or other place.

            (ar) “Governmental body” means any of the following:

            1. The federal government.

            2. This state.

            3. A county or municipal governing body, agency, board, commission, committee, council, department, district or any other public body corporate and politic created by constitution, statute, ordinance, rule or order.

            4. A governmental or quasi-governmental corporation.

            5. A formally constituted subunit or an agency of subd. 1., 2., 3. or 4.

            (b) “Injury” means an injury to a person or to property.

            (c) “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.

            (d) “Owner” means either of the following:

            1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property.

            2. A governmental body or nonprofit organization that has a recreational agreement with another owner.

            (e) “Private property owner” means any owner other than a governmental body or nonprofit organization.

            (f) “Property” means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under s. 281.01 (18).

            (g) “Recreational activity” means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle or utility terrain vehicle, operating a vehicle, as defined in s. 340.01 (74), on a road designated under s. 23.115, recreational aviation, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, participating in an agricultural tourism activity, sport shooting and any other outdoor sport, game or educational activity. “Recreational activity” does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.

            (h) “Recreational agreement” means a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specified part of the owners property for any recreational activity.

            (hm) “Recreational aviation” means the use of an aircraft, other than to provide transportation to persons or property for compensation or hire, upon privately owned land. For purposes of this definition, “privately owned land” does not include a public-use airport, as defined in s. 114.002 (18m).

            (i) “Residential property” means a building or structure designed for and used as a private dwelling accommodation or private living quarters, and the land surrounding the building or structure within a 300-foot radius.

(2) NO DUTY; IMMUNITY FROM LIABILITY.

            (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owners property to engage in a recreational activity:

            1. A duty to keep the property safe for recreational activities.

            2. A duty to inspect the property, except as provided under s. 23.115 (2).

            3. A duty to give warning of an unsafe condition, use or activity on the property.

            (b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owners property or for any death or injury resulting from an attack by a wild animal.

(3) LIABILITY; STATE PROPERTY.

            Subsection (2) does not limit the liability of an officer, employee or agent of this state or of any of its agencies for either of the following:

            (a) A death or injury that occurs on property of which this state or any of its agencies is the owner at any event for which the owner charges an admission fee for spectators.

            (b) A death or injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employee or agent knew, which occurs on property designated by the department of natural resources under s. 23.115 or designated by another state agency for a recreational activity.

(4) LIABILITY; PROPERTY OF GOVERNMENTAL BODIES OTHER THAN THIS STATE.

            Subsection (2) does not limit the liability of a governmental body other than this state or any of its agencies or of an officer, employee or agent of such a governmental body for either of the following:

            (a) A death or injury that occurs on property of which a governmental body is the owner at any event for which the owner charges an admission fee for spectators.

            (b) A death or injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employee or agent of a governmental body knew, which occurs on property designated by the governmental body for recreational activities.

(5) LIABILITY; PROPERTY OF NONPROFIT ORGANIZATIONS.

            Subsection (2) does not limit the liability of a nonprofit organization or any of its officers, employees or agents for a death or injury caused by a malicious act or a malicious failure to warn against an unsafe condition of which an officer, employee or agent of the nonprofit organization knew, which occurs on property of which the nonprofit organization is the owner.

(6) LIABILITY; PRIVATE PROPERTY.

            Subsection (2) does not limit the liability of a private property owner or of an employee or agent of a private property owner whose property is used for a recreational activity if any of the following conditions exist:

            (a) The private property owner collects money, goods or services in payment for the use of the owners property for the recreational activity during which the death or injury occurs, and the aggregate value of all payments received by the owner for the use of the owners property for recreational activities during the year in which the death or injury occurs exceeds 2,000. The following do not constitute payment to a private property owner for the use of his or her property for a recreational activity:

            1. A gift of wild animals or any other product resulting from the recreational activity.

            2. An indirect nonpecuniary benefit to the private property owner or to the property that results from the recreational activity.

            3. A donation of money, goods or services made for the management and conservation of the resources on the property.

            4. A payment of not more than 5 per person per day for permission to gather any product of nature on an owners property.

            5. A payment received from a governmental body.

            6. A payment received from a nonprofit organization for a recreational agreement.

            7. A payment made to purchase products or goods offered for sale on the property.

            (b) The death or injury is caused by the malicious failure of the private property owner or an employee or agent of the private property owner to warn against an unsafe condition on the property, of which the private property owner knew.

            (c) The death or injury is caused by a malicious act of the private property owner or of an employee or agent of a private property owner.

            (d) The death or injury occurs on property owned by a private property owner to a social guest who has been expressly and individually invited by the private property owner for the specific occasion during which the death or injury occurs, if the death or injury occurs on any of the following:

            1. Platted land.

            2. Residential property.

            3. Property within 300 feet of a building or structure on land that is classified as commercial or manufacturing under s. 70.32 (2) (a) 2. or 3.

            (e) The death or injury is sustained by an employee of a private property owner acting within the scope of his or her duties.

(7) NO DUTY OR LIABILITY CREATED.

Except as expressly provided in this section, nothing in this section, s. 101.11, or s. 895.529 nor the common law attractive nuisance doctrine creates any duty of care or ground of liability toward any person who uses anothers property for a recreational activity.


Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Patti J. Roberts and David Roberts, Plaintiffs-Appellants-Petitioners, v. T.H.E. Insurance Company, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson, Defendants-Respondents, Dean Health Plan, Inc., Defendant.

No. 2014AP1508

SUPREME COURT OF WISCONSIN

2016 WI 20; 2016 Wisc. LEXIS 121

December 15, 2015, Oral Argument

March 30, 2016, Filed

NOTICE:

THIS OPINION IS SUBJECT TO FURTHER EDITING AND MODIFICATION. THE FINAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.

PRIOR HISTORY: [**1] REVIEW of a decision of the Court of Appeals. COURT: Circuit. COUNTY: Dodge. JUDGE: Joseph G. Sciascia. (L.C. No. 2013CV391).

Roberts v. T.H.E. Ins. Co., 2015 WI App 37, 363 Wis. 2d 656, 2015 Wisc. App. LEXIS 229 (2015)

DISPOSITION: Reversed and cause remanded.

COUNSEL: For the plaintiffs-appellants-petitioners, there were briefs by Timothy S. Knurr and Gruber Law Offices, LLC, Milwaukee and oral argument by Timothy S. Knurr.

For the defendants-respondents, there was a brief by Ward I. Richter, David G. Ress and Bell, Moore & Richter, S.C., Madison, WI and oral argument by David G. Ress.

JUDGES: ANN WALSH BRADLEY, J. ANNETTE KINGSLAND ZIEGLER, J. (concurring). DAVID T. PROSSER, J. (concurring in part; dissenting in part). REBECCA G. BRADLEY, J. (dissenting).

OPINION BY: ANN WALSH BRADLEY

OPINION

[*P1] ANN WALSH BRADLEY, J. Petitioners, Patti and David Roberts, seek review of an unpublished court of appeals decision that affirmed the circuit court’s order for summary judgment, dismissing their claims.1 The court of appeals determined that Wisconsin’s recreational immunity statute barred the petitioners’ claims because Patti Roberts was engaged in the recreational activity of hot air ballooning at the time she was injured.2

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., (Wis. Ct. App. Mar. 26, 2015) (affirming order of summary [**2] judgment entered by the circuit court for Dodge County, Joseph G. Sciascia, J., presiding).

2 Although Patti’s husband, David Roberts, is also a petitioner, we will refer to Patti Roberts as the lone petitioner for ease of discussion.

[*P2] Roberts argues that the respondents, Sundog Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company (collectively “Sundog”) are not entitled to immunity pursuant to Wis. Stat. § 895.52 because Sundog was not an owner under the statute. She contends that Sundog was neither an “occupier” of the land nor was the hot air balloon “property.”3

3 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

[*P3] In reply, Sundog asserts that even if it were not entitled to immunity under Wis. Stat. § 895.52, Roberts’ claims are barred because she signed a waiver of liability form.

[*P4] We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”4 Finally, we determine that Sundog’s waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, [**3] we reverse the court of appeals and remand to the circuit court for further proceedings.

4 Roberts also argues that Sundog is not entitled to immunity under Wis. Stat. § 895.52 because Sundog’s negligence was not associated with a condition of the land. We need not reach this argument because we conclude that Sundog was not an owner under the statute. The issue of whether a party’s negligence is associated with a condition of the land applies only if that party is an owner under the statute. See, e.g., Linville v. City of Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 427 (1994); see also Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 475, 565 N.W.2d 260 (Ct. App. 1997).

I.

[*P5] The relevant facts of this case are undisputed. Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises (“Green Valley”). Beaver Dam Conservationists, LLC (“the Conservationists”) owned the shooting range where the charity event was held.

[*P6] Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley’s charity event.

[*P7] On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised [**4] the balloon to the length of the ropes and then lowered it back to the ground.

[*P8] Patti Roberts and her family watched the balloon rides and then entered the line to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries.

[*P9] The liability waiver form states in part:

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, [**5] arising out of the ballooning activities . . . .

[*P10] After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon’s tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon’s basket and knocked to the ground.

[*P11] The evidence submitted to the circuit court demonstrated that defendant Kerry Hanson, the balloon operator, had limited experience with tethered ballooning before giving rides at Green Valley’s event. Hanson testified in his deposition that he should have obtained information regarding weather fronts in the area. Had he known about the weather front on the day Roberts was injured, Hanson testified that he would have suspended the ride.

[*P12] Hot air ballooning is governed by FAA guidelines and rules. See, e.g., Fed. Aviation Admin., U.S. Dep’t. of Transp., Pub. No. FAA-H-8083-11A, Balloon Flying Handbook 7-13 (2008). The FAA’s safety recommendations instruct the balloon operator to plan for the failure of one or more of the tethered lines and have a backup plan for safety. See id. at 7-14. In addition, the operator should organize participants [**6] “far back” from the balloon and tether lines. Id. At his deposition, Hanson agreed that had he moved the sign-up table and waiting line further back from the balloon, Roberts would not have been injured.

[*P13] Roberts filed a lawsuit against Sundog, alleging that its negligence caused her injuries. Sundog moved the circuit court for summary judgment, arguing that it is entitled to immunity under Wis. Stat. § 895.52 and that Roberts’ claims were barred by the waiver of liability form that she signed.

[*P14] The circuit court granted Sundog’s summary judgment motion, dismissing Roberts’ claims and concluding that Sundog was entitled to immunity under Wis. Stat. § 895.52. It also determined that the waiver of liability form Roberts signed was valid as a matter of law, although an issue of fact remained as to whether she had accepted the terms.

[*P15] On appeal, Roberts argued that Sundog is not entitled to immunity because her injury was not related to a condition associated with the land. Roberts asserted that under Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994) and Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), no immunity attaches for negligent conduct unassociated with the land.

[*P16] The court of appeals rejected Roberts’ argument, determining that it was “based on a misreading of the case law . . . which has no application to the [**7] facts of this case.”5 See Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶17 (Wis. Ct. App. Mar. 26, 2015). It explained that this was “the only argument that Roberts makes directed to the application of Wis. Stat. § 895.[52].” Id., ¶22. The court of appeals did not address the validity of the liability waiver form because its decision as to immunity disposed of the appeal. Id., ¶2 n.2.

5 This Court has previously expressed its concern that the recreational immunity statue is often difficult to apply and has recommended that the legislature reexamine this statute. See, e.g., Auman v. School Dist. Of Stanley-Boyd, 2001 WI 125, ¶11, 248 Wis. 2d 548, 635 N.W.2d 762 (“This court has wrestled with applying the recreational immunity statute . . . since its enactment. . . . We continue to be frustrated in our efforts to state a test that can be applied easily because of the seeming lack of basic underlying principles in the statute.”); see also Urban v. Grasser, 2001 WI 63, ¶12, 243 Wis. 2d 673, 627 N.W.2d 511 (“Circuit courts, the court of appeals, and this court have wrestled with recreational immunity since the legislature first provided for such immunity under the law. We have all been frustrated by the seeming lack of basic underlying principles in our efforts to state a test that can be easily applied.”).

[*P17] Before this court, Roberts renews her argument [**8] that Sundog’s negligence was not connected to a condition associated with the land. Because this court ordered briefing on an additional issue, she also asserts that Sundog is not entitled to immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Roberts argues that Sundog was not an “occupier” of the land and that the hot air balloon was not “property” because it was not a “structure.” Sundog replies that even if it is not entitled to immunity under Wis. Stat. § 895.52, Roberts’ claims are barred because she signed a waiver of liability form.

II.

[*P18] In this case we are asked to review the circuit court’s grant of summary judgment. [HN1] We review grants of summary judgment applying the same methodology employed by the circuit court. Belding v. Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 843 N.W.2d 373. Summary judgment is appropriate if “there is no genuine issue as to any material fact and [] the moving party is entitled to [] judgment as a matter of law.” Wis. Stat. § 802.08(2).

[*P19] Here, there is no genuine issue of material fact. Accordingly, we focus on whether the application of Wis. Stat. § 895.52 bars Roberts’ claims. [HN2] Statutory interpretation presents a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Dinkins, 2012 WI 24, ¶28, 339 Wis. 2d 78, 810 N.W.2d 787.

[*P20] [HN3] In interpreting a statute we begin [**9] by examining its language, giving words and phrases their common, ordinary, and accepted meaning. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory language must be interpreted reasonably to avoid absurd or unreasonable results. Id., ¶46.

[*P21] [HN4] When the legislature has expressly stated the purpose of a statute, the purpose is relevant to the plain meaning interpretation of the statute. See id., ¶48. “[A] plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.” Id., ¶49.

[*P22] [HN5] In examining an exculpatory contract, we likewise apply the same summary judgment methodology as employed by the circuit court. See Richards v. Richards, 181 Wis. 2d 1007, 1010-11, 513 N.W.2d 118 (1994) (citing Dobratz v. Thomson, 161 Wis. 2d 502, 513, 468 N.W.2d 654 (1991)). The validity of an exculpatory contract is reviewed as a matter of law. Id. at 1011.

III.

[*P23] We begin our analysis with a brief explanation of what is not in dispute. Neither party disputes that Roberts was participating in a recreational activity at the time she was injured because ballooning is listed in the statutory definition of “recreational activity.” [HN6] Wis. Stat. § 895.52(1)(g) defines “recreational activity” as: [A]ny outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, [**10] camping,… ballooning, hang gliding, hiking . . . .” (emphasis added).

[*P24] Furthermore, “[t]he case law is clear that a spectator who attends a recreational activity is engaged in a recreational activity.” Meyer v. School Dist. Of Colby, 226 Wis. 2d 704, 710, 595 N.W.2d 339 (1999); see also Linville, 184 Wis. 2d at 717 (concluding that preparation for a recreational activity that takes place at a recreational facility that is open for public use is a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g)). Given that Roberts was on recreational land open to the public, watching the balloon rides as a spectator, and preparing for the balloon ride by waiting in line, she was engaged in a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g).

A.

[*P25] Although Roberts does not dispute that she was engaged in a recreational activity, she does contest the issue of immunity. Roberts argues that Sundog is not entitled to immunity as an occupier of the property where she was engaged in a recreational activity.

[*P26] The recreational immunity statute Wis. Stat. § 895.52 provides:

(2) [HN7] NO DUTY; IMMUNITY FROM LIABILITY.

(a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner’s property to engage in a recreational activity:

1. A duty to keep the property safe for recreational activities. [**11]

2. A duty to inspect the property, except as provided under s. 23.115(2).

3. A duty to give warning of an unsafe condition, use or activity on the property.

(b) Except as provided in subs. (3) to (6), no owner and no officer, employee, or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property . . . .

[*P27] [HN8] Wis. Stat. § 895.52(1)(d)1 defines an “owner” as “[a] person, including a governmental body or nonprofit organization, that owns leases or occupies property.” Wis. Stat. § 895.52(1)(f) further defines “property” as “real property and buildings, structures and improvements thereon . . . .”

[*P28] The legislative purpose of the recreational immunity statute is set forth in 1983 Wis. Act 418, § 1. Its stated purpose is to limit liability in order to encourage property owners to open their lands to the public:

The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, [**12] this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability . . . . 1983 Wis. Act 418, § 1.

As our cases have explained, “the impetus for this law is the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.” Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App. 1988).

[*P29] In reply, Sundog argues that it is entitled to recreational immunity because Roberts was injured at an event similar to those in prior cases. Sundog asserts that it is entitled to immunity as an “occupier” of the land, for the same reasons that the producer of a fair or event qualifies for recreational immunity. Prior cases interpreting Wisconsin’s recreational immunity law have concluded that the producer of a fair or event “occupied” property. See, e.g., Id., at 490; Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 106, 473 N.W.2d 581 (Ct. App. 1991); Weina v. Atlantic Mut. Ins. Co., 179 Wis. 2d 774, 777 n.2, 508 N.W.2d 67 (Ct. App. 1993).

[*P30] As Sundog’s counsel aptly argued, Wisconsin courts have concluded private organizations hosting an event on land they did not own are entitled to recreational immunity. In Hall, the plaintiff was injured when he stepped in a hole on the grounds of [**13] the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions Club. 146 Wis. 2d at 487. The Lion’s Club was not the titled owner of the land on which it held the fair. Id. at 490. The court of appeals concluded that the Lions Club was entitled to recreational immunity as a “landowner” that allowed Hall entry for “recreational activity.” Id. at 487-89.

[*P31] Likewise, in Lee, the plaintiff was injured when he slipped and fell on icy ground beneath a tent erected by the Elk Rod & Gun Club for a fishing contest on Bugle Lake. 164 Wis. 2d at 105. Lee explained that “[t]he club, as an occupant of the city park land, is treated as a landowner for purposes of recreational immunity.” Id. at 107 (citing Hall, 146 Wis. 2d at 490-91).

[*P32] Again, in Weina, the plaintiff was injured playing softball at a church picnic held at a public park. 179 Wis. 2d at 776. The plaintiff sued both the church and the teammate who hit the injurious baseball. Id. Granting summary judgment in favor of the church, the circuit court denied the teammate’s motion for summary judgment. Id. at 777 n.1. The court of appeals affirmed the circuit court’s judgment that the church, as the event organizer, was entitled to immunity. Id. at 779.

[*P33] This case is different from prior cases, however, because Roberts did not bring claims against the event producer or owner of the property. Green Valley [**14] Enterprises, not Sundog, produced the charity event where Roberts was injured. The Conservationists, not Sundog, was the owner of the property where the event took place. None of the prior cases interpreting Wis. Stat. § 895.52 has granted immunity to a third party not responsible for opening up the land to the public.6

6 Wis. Stat. § 895.52(2) grants immunity to officers, employees, or agents of an owner. Because the parties in this case did not argue or brief the issue of whether Sundog was an officer, employee, or agent of either the Conservationists or Green Valley, we do not address it. [HN9] We need not address issues that have not been raised or argued by the parties. See, e.g., State v. Steffes, 2013 WI 53, ¶28, 347 Wis. 2d 683, 832 N.W.2d 101.

[*P34] The distinction between Sundog and the producer of a fair or event is supported by case law analyzing the definition of “occupy” in the context of the statute’s policy. In Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 355, 575 N.W.2d 734 (Ct. App. 1998), the court of appeals held that the owner of an ice shanty was not an occupier under Wis. Stat. § 895.52. As Doane explained, [HN10] “occupy” is defined as “to take and hold possession.” Id. at 354 (citing Webster’s New Collegiate Dictionary 794 (8th ed. 1974)). The term “occupy,” as it is used in Wis. Stat. § 895.52, has been defined as “requiring a degree of permanence, as opposed to mere use.” Id. (citations ommitted).

[*P35] Underlying [**15] the Doane decision was the same statutory policy at issue here. As Doane explained, to define the owner of the ice shanty as an occupier “would not further the policy which underlies the statute, i.e., of opening as much property as possible for recreational use, because the lake was already held in trust for public recreational purposes, such as fishing.” Id. at 355. Here, as in Doane, defining Sundog as an “occupier” would not further the policy underlying the statute because the Conservationists’ property was already open for public recreational purposes.

[*P36] The Linville court also explained that we must consider whether immunity will encourage landowners to open the land for public use:

The benefits of granting immunity, i.e., encouraging landowners to open their lands to the public, comes from immunizing people or municipalities in their capacities as landowners . . . . Extending immunity to landowners for negligently performing in a capacity unrelated to the land . . . will not contribute to a landowner’s decision to open the land for public use.

184 Wis. 2d 705, 516 N.W.2d 427.

[*P37] Here, it was Green Valley and the Conservationists—- not Sundog—-that were responsible for opening the land to the public. The Conservationists [**16] allowed Green Valley to host an event on the land. Green Valley was responsible for organizing the event and bringing people onto the land. Sundog provided hot air balloon rides on land that was owned by the Conservationists and occupied by Green Valley. Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.

[*P38] We also find Linville instructive in determining the logical stopping point for immunity. In Linville, the court analyzed whether granting immunity to city paramedics could create limitless immunity for all medical services provided for injuries sustained while recreating. 184 Wis. 2d 705, 516 N.W.2d 427. “Such services could conceivably take place days or even weeks after the recreational activity, at facilities far removed from the site of recreation, and by persons in no way connected to the land on which the accident occurred.” Id. at 720. “Such a result is absurd, leaves immunity limitless, and therefore could not have been intended by the legislature.” Id.

[*P39] [HN11] Wis. Stat. § 895.52 “was not enacted to provide indiscriminate immunity for landowners without regard to possible consequences.” Id. at 719 (quoting Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991)). Extending immunity to Sundog could [**17] lead to limitless immunity. Sundog is not the owner of the land. It is not occupying the land as an event organizer and is therefore not responsible for opening up the land to the public. If Sundog—-who has no connection to the land—-is granted immunity, there will be no stopping point to recreational immunity.

[*P40] For example, what if Roberts brought a claim against the manufacturer of the hot air balloon that injured her? What if the tether that broke loose was due to a fault in the manufacture of the balloon, rather than the wind? Should the balloon manufacturer, which had no connection to opening the land to the public, be immunized because ballooning is a recreational activity?

[*P41] Granting immunity to third parties that are not responsible for opening up the land to the public is unsupported by our prior case law. In addition, it would create an absurd result with no logical stopping point that does nothing to further the legislative purpose of the statute. Accordingly, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it was not an “occupier” of the land.

B.

[*P42] Next, Sundog argues that it is entitled to immunity not only as an “occupier” of real property, but [**18] also as an owner of “property” because the hot air balloon is a structure pursuant to Wis. Stat. § 895.52(1)(f). [HN12] “Property” means real property and buildings, structures and improvements thereon. Wis. Stat. § 895.52(1)(f).

[*P43] The term “structure” is not defined in Wis. Stat. § 895.52, and is therefore given its common and ordinary meaning. Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶16, 248 Wis. 2d 567, 636 N.W.2d 727. A “structure” is “something constructed,” or “something made up of a number of parts that are held or put together in a particular way.” Id. (citing American Heritage Dictionary of the English Language, 1782 (3d ed. 1992)). “Structure” is also defined as “[a]ny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Id. (citing Black’s Law Dictionary, 1424 (6th ed. 1991)).

[*P44] Sundog relies on Peterson, in which this court held that the owner of a tree stand was entitled to immunity as the owner of a “structure” on real property. Id., ¶4. Peterson adopted the court of appeals’ decision in Doane. Peterson, 248 Wis. 2d 567, ¶20. The Doane court identified three categories of property that qualify owners for immunity: (1) real property; (2) buildings, structures and improvements thereon; and (3) waters of the state. Doane, 216 Wis. 2d at 352. Sundog argues that like the tree stand in Peterson, the hot air balloon [**19] is a structure because it was constructed or put together in a particular way and made up of parts joined together.

[*P45] Although it may have been made up of parts joined together, the hot air balloon ride was not constructed on real property. In Peterson, the tree stand was permanent and built or constructed on the real property. See Peterson, 248 Wis. 2d 567, ¶¶5-7. The hot air balloon in this case was transient and designed to be moved at the end of the day. It was also not designed to remain in one place. The balloon was tethered to two trees and a pick-up truck because of the manner in which Sundog was using it on the day of the event. Thus, we conclude that the hot air balloon is not a structure as that term is applied in Wis. Stat. § 895.52(1)(f).

[*P46] Accordingly, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it is not a “structure.”

IV.

[*P47] Having determined that Sundog is not entitled to immunity under Wis. Stat. § 895.52, we must address whether Roberts’ claims are barred by Sundog’s exculpatory release. Sundog argues that the waiver of liability form that Roberts signed is valid under Wisconsin law. [**20]

[*P48] [HN13] Wisconsin case law does not favor exculpatory agreements. See, e.g., Atkins v. Swimwest Family Fitness Center, 2005 WI 4, ¶12, 277 Wis. 2d 303, 691 N.W.2d 334. “While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it.” Id., ¶12 (citing Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81, 557 N.W.2d 60 (1996); Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173 (1982)).

[*P49] Our analysis of an exculpatory contract begins with examining the facts and circumstances of the agreement to determine if it covers the activity at issue. Atkins, 277 Wis. 2d 303, ¶13 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 211, 330 N.W.2d 773 (1983), overruled on other grounds). If the contract covers the activity, we proceed to a public policy analysis, “which remains the ‘germane analysis’ for exculpatory clauses.” Id., ¶13 (citing Yauger, 206 Wis. 2d at 86). “We generally define public policy as ‘that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.'” Id., ¶14 (quoting Merten, 108 Wis. 2d at 213).

[*P50] This court has found [HN14] an exculpatory agreement to be invalid if it contains misrepresentations, if it too broadly defines the location and actions covered, or if it is ambiguous and uncertain. See, e.g., Merten, 108 Wis. 2d at 214-15; see also Arnold, 111 Wis. 2d at 211-13; Dobratz, 161 Wis. 2d at 526. Our prior decisions have also set forth the factors to apply in analyzing whether a contract is void as a matter of law.

[*P51] In Richards, 181 Wis. 2d 1007, 513 N.W.2d 118, the plaintiff was injured while accompanying [**21] her husband on a trip. The waiver in Richards was both an application for permission to be a passenger and a release of all claims against the trucking company. Id. at 1012. Richards held that the contract was void as against public policy because: (1) the contract served two purposes which were not clearly identified or distinguished; (2) the release was extremely broad and all-inclusive; and (3) the release was in a standardized agreement printed on the Company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining. Id. at 1011.

[*P52] In Yauger, 206 Wis. 2d 76, 557 N.W.2d 60, an 11-year old skier was killed when she struck a concrete ski lift tower pylon. Prior to the ski season, her father signed an “application” for a season family lift ticket. Id. at 79. The application stated: “I agree that [] [t]here are certain inherent risks in skiing and that we agree to hold [the ski resort] harmless on account of any injury incurred . . . on the [ski resort] premises.” Id. at 79. “Inherent risks” and “premises” were not defined. Id. at 84-85.

[*P53] The Yauger court unanimously concluded that the agreement was void as against public policy because: (1) it failed to clearly, unambiguously, and unmistakably explain to the signatory that he was accepting the risk [**22] of Hidden Valley’s negligence; and (2) the form when considered in its entirety failed to alert the signer to the nature and significance of the document being signed. Id. at 78.

[*P54] More recently in Atkins, this court considered the enforceability of an exculpatory agreement after a swimmer drowned in a lap pool at a fitness center. Atkins, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334. As a condition of being allowed to use the center, the swimmer had to complete a guest registration and waiver release statement form. Id., ¶3. The form was preprinted on a five and one-half inch square card, and the entire card was printed in capital letters of the same size, font, and color. Id., ¶4.

[*P55] Atkins held that the waiver was invalid, noting that “Wisconsin case law does not favor [exculpatory] agreements,” and “such a provision must be construed strictly against the party seeking to rely on it.” Id., ¶12. The Atkins court adopted a combination of the Yauger and Richards factors in its decision: (1) the waiver was overly broad and all-inclusive; (2) the form served two functions and did not provide the signer adequate notification of the waiver’s nature and significance; and (3) there was little or no opportunity to bargain or negotiate in regard to the exculpatory [**23] language in question. Id., ¶18; see also Alexander T. Pendleton, Enforceable Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 16, 46 (Aug. 2005).

[*P56] Turning to the release at issue in this case, it is undisputed that Sundog required Roberts to sign a waiver prior to riding in the hot air balloon. Roberts signed the waiver while she was waiting in line for the ride, but never returned it. The signed waiver was found on the event grounds after she was injured by the hot air balloon.

[*P57] Sundog argues that Roberts read the release, understood its importance, and understood she was waiving her right to bring a negligence claim. It also asserts that Roberts had the opportunity to bargain and ask questions, but failed to do so. Roberts counters that she never accepted the liability waiver form because she never returned it to Sundog. She also argues that the waiver is void as a matter of law because it violates public policy.

[*P58] We agree with Roberts that the waiver of liability form is unenforceable as a matter of law because it fails to satisfy the factors set forth in our prior case law. Because the waiver is void as a matter of law, we need not address the question of whether Roberts [**24] accepted the agreement.7

7 Additionally, we do not address whether the question of Roberts’ “acceptance” presents a question of fact or law here.

[*P59] First, Sundog’s exculpatory waiver is overly broad and all-inclusive. As our prior cases have explained, [HN15] an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.” Richards, 181 Wis. 2d at 1015 (citing College Mobile Home Park & Sales, Inc. v. Hoffmann, 72 Wis. 2d 514, 521-22, 241 N.W.2d 174 (1976)).

[*P60] The waiver in this case would absolve Sundog for any activity for any reason, known or unknown:

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning [**25] activities…

Not only is the waiver overly broad, it is not clear whether waiting in line for the ride is something Roberts would have contemplated as being covered by the waiver, especially because she was not required to return the waiver before she got into the line.

[*P61] Second, the release was a standard agreement printed on the company’s form, offering Roberts no opportunity to bargain or negotiate in regard to the exculpatory language in question. See Richards, 181 Wis. 2d at 1011. [HN16] “Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity.” Id. at 1016.

[*P62] Sundog concedes that the waiver of liability was a standard form. In order to ride the balloon, Roberts was told she would have to sign “this document.” Sundog did not discuss the content of the waiver or any of the risk associated with ballooning activities or watching others ride with Roberts. There was also no pre-flight meeting as referenced in the agreement. Roberts was not asked if she had any complaints or concerns with the waiver and she did not have an opportunity to negotiate the terms of the waiver.

[*P63] Thus, the liability waiver form is void as a matter of law. It is overly broad, printed on a standard [**26] form, and Sundog did not provide Roberts with an opportunity to bargain over the terms of the contract. As our prior case law demands, [HN17] we will not uphold a waiver of liability that violates public policy.

V.

[*P64] In sum, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”

[*P65] Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings.

CONCUR BY: ANNETTE KINGSLAND ZIEGLER; DAVID T. PROSSER (In Part)

CONCUR

[*P66] ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the opinion of the court because I agree that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 (2013-14) and that Sundog’s waiver of liability form is unenforceable. The court appropriately does not reach the questions of whether Roberts’ injuries arose from a condition or maintenance of the land and, if not, whether Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), preclude the attachment of immunity to Sundog under § 895.52, see majority op., ¶4 [**27] n.4, because resolution of that issue is not necessary to the disposition of this case.

[*P67] I feel compelled to comment briefly on the condition-or-maintenance issue so that the position set forth by the court of appeals below is not read as the only possible view of the matter. Simply stated, while the policy behind the statute is to encourage landowners to open their land to the public, the recreational immunity statute does not cloak a negligent actor with immunity no matter what they do.

[*P68] Unlike the court of appeals below, I conclude that there is a patent “division of functions” at play in this case. Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶20 (Wis. Ct. App. Mar. 26, 2015). Put differently, Sundog’s “immunity for its functions as [occupier] of recreational land cannot shelter its liability for negligently performing another function,” namely the operation of its hot air balloon business. Linville v. City of Janesville, 184 Wis. 2d 705, 711 516 N.W.2d 427 (1994). This conclusion is consistent with Linville, Kosky, and the recreational immunity statute.

[*P69] Wisconsin Stat. § 895.52(2)(b) states in part, “[N]o owner . . . is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property . . . .” Despite [**28] the broad nature of this language, we concluded in Linville that an “owner” under the statute might sometimes function in a capacity unrelated to its ownership of land, and that the owner should not be immunized against claims that the owner engaged in negligent conduct when operating in that capacity. Linville, 184 Wis. 2d at 720-21. Hence, a municipal owner of a pond in which a four-year-old boy drowned despite the efforts of paramedics employed by the owner was immune under § 895.52 from claims that its pond was negligently maintained, but not immune from claims that it negligently performed in its capacity as provider of paramedic services. Id.

[*P70] This conclusion followed from our recognition that “[t]he policy behind the statute is to encourage property owners to open their lands for recreational activities by removing a property user’s potential cause of action against a property owner’s alleged negligence.” Id. at 715. We reasoned that Wis. Stat. § 895.52 “was not enacted to provide indiscriminate immunity for landowners without regard to possible consequences” and that “[e]xtending immunity to landowners for negligently performing in a capacity unrelated to the land . . . will not contribute to a landowner’s decision to open the land for public use.” Id. at 719 (citation [**29] omitted).

[*P71] The court of appeals applied Linville just a few years later when an individual who suffered injuries assisting in the detonation of fireworks for a display sued the owner of land on which the fireworks display occurred, alleging that the owner had negligently managed the display. Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 468-70, 476-77, 565 N.W.2d 260 (Ct. App. 1997). The court of appeals concluded, relying on Linville, that the landowner—-which was an “occupie[r]” under the recreational immunity statute—-was not immune because the allegedly negligent activities of the owner and its employees related to the detonation of fireworks, not “the condition or maintenance of the land” which it owned. Id. at 468, 470 n.3, 476-77. “[R]ecreational immunity,” the court determined, “does not attach to the landowner when an act of the landowner’s officer, employee or agent that is unrelated to the condition or maintenance of the land causes injury to a recreational land user.” Id. at 475.

[*P72] In the instant case, Roberts cites Linville and Kosky and argues that Sundog’s alleged negligence—-the use of an “improper tethering system” and the decision “to proceed with a tethered balloon event in the face of a known storm/gust front”– –did not relate to a condition of the land. Therefore, Roberts argues, immunity does not attach. In dismissing [**30] this argument, the court of appeals declared: “Roberts identifies no . . . division of functions here. Rather, as stated above, Roberts sued Sundog as owner of property on which Patti Roberts was engaging in a recreational activity.” Roberts, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶20.

[*P73] This conclusion is perplexing, because there is a clear potential division of functions in this case: Sundog the property owner (occupier) and Sundog the hot air balloon company owner.1 The approach taken by the court of appeals below leads to the “indiscriminate immunity” against which we warned in Linville, upsetting the balance struck by the Legislature in both ensuring the protection of the public and incentivizing landowners to allow access to their land. Linville, 184 Wis. 2d at 719; see Ervin v. City of Kenosha, 159 Wis. 2d 464, 478, 464 N.W.2d 654 (1991).

1 The division of functions is only “potential” because, as explained, Sundog is not actually an owner under Wis. Stat. § 895.52(1)(d). See majority op. ¶4.

[*P74] Wisconsin Stat. § 895.52 protects property owners who open their land to the public, but it does not necessarily provide a shield to business owners who are negligent in the operation of their business. See § 895.52(1)(d)1. (defining “[o]wner” to mean, inter alia, “[a] person . . . that owns, leases or occupies property” (emphasis added)). Indeed, it is the partial purpose of § 895.52’s sister [**31] statute, § 895.525 (“Participation in recreational activities; restrictions on civil liability, assumption of risk”), “to help assure the continued availability in this state of enterprises that offer recreational activities to the public.” Wis. Stat. § 895.525(1) (emphasis added). These enterprises are nowhere mentioned in § 895.52, which does not pertain to them.

[*P75] The Linville and Kosky courts recognized that Wis. Stat. § 895.52 grants recreational immunity, not sovereign immunity, and that the protections offered by § 895.52 end when a landowner performs negligently in a capacity unrelated to the individual’s ownership of the land. These considerations govern here.

[*P76] A hypothetical helps illustrate. One of the many pleasant diversions included in Wis. Stat. § 895.52(1)(g)’s definition of “[r]ecreational activity” is “rock-climbing.” § 895.52(1)(g). If a landowner in northern Wisconsin owns a piece of property with a cliff on it and wishes, out of the goodness of her heart, to allow the local weekend rock-climbers’ club to use the cliff for practice, the legislature has determined via § 895.52 that she should not be penalized if, for example, an unfortunate climber plummets to his death from the cliff. This seems reasonable enough, as a grant of such immunity encourages the landowner to open the land to climbers [**32] without fear of negative repercussions. See Linville, 184 Wis. 2d at 715. On the other hand, imagine that the landowner decides to capitalize on her property’s attraction and opens an outdoor rock-climbing business, providing training, ropes, and safety equipment to climbers. Under the interpretation of the statute espoused by the court of appeals, if the landowner should decide to continue allowing the unsuspecting local club to climb for free, or opens up her land for a charity event, she can operate her business negligently with respect to the club or to the eventgoers—-snapping ropes, cracked helmets, improper training—-without fear.

[*P77] This hypothetical is not much different than the current case: in both instances there is a potential landowner/occupier who provides access to land but who also allegedly negligently provides recreational activity services on that land.

[*P78] The scope of immunity provided by this reading of Wis. Stat. § 895.52 is potentially enormous, but there is a more reasonable interpretation: the one applied in Linville and Kosky. Assuming that Sundog could be characterized as an “owner” under § 895.52(1)(d)—-and the opinion of the court correctly concludes that it can not, see majority op. ¶4—-then it is immune insofar as it [**33] is sued in its capacity as “owner” of the patch of land on which it was offering free balloon rides. It is not immune, however, insofar as it is sued in its capacity as owner of a hot air balloon company. This is the division of functions that the court of appeals found lacking. Just as holding the cliff-owner in the hypothetical liable for snapping ropes, cracked helmets, and improper training will not discourage the owner from allowing climbers to use the cliff without the involvement of her business, failing to grant Sundog immunity as a business operator will not discourage it from “opening” its land for recreational activities (that is, activities not conducted by Sundog).

[*P79] In fairness, application of the statute to facts such as these produces some cognitive dissonance, because, had Sundog been found to be an “occupie[r],” it would not really be a property owner in the sense that most people are used to thinking about that phrase. Sundog would only be a property owner under the recreational immunity statute because it “occupie[d]” the Conservationists’ land, and it was only occupying the Conservationists’ land because it wanted to offer free balloon rides. But it must be remembered that we are essentially [**34] thinking of two Sundogs for purposes of the Linville/Kosky analysis: business owner Sundog, which provides hot air balloon rides, and occupier Sundog, which stands on the sidelines and watches the eventgoers happily use “its” property free of charge.

[*P80] Importantly, and contrary to what Roberts seems to argue, this interpretation should not be misconstrued to mean that immunity under Wis. Stat. § 895.52 extends only to injuries associated with the physical land itself, e.g., injuries from holes in the ground. Wisconsin Stat. § 895.52(2)(b) provides immunity to owners for any “death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property.” § 895.52(2)(b) (emphases added). But the fact remains that immunity is extended to the “owner,” i.e. the property owner—-not to, for instance, a business operator also on that property. Thus, if someone is accidentally shot while hunting on a landowner’s property, the landowner is seemingly immune from suit against her as landowner (even though the bullet is not “associated” with a condition of the land). But if the landowner also operates a hunting supply shop on the land, opens the land for a charity event, and proceeds to provide negligently-maintained [**35] firearms to participants, it might be that recreational immunity would not attach to the entity in its capacity as a business owner.

[*P81] Ultimately, because Sundog is not an “owner” under Wis. Stat. § 895.52(1)(d), the question of whether it operated in two distinct capacities at the charity event is not relevant to the outcome of this case. However, the court of appeals should not be the only word on this important question, which is wisely left unanswered by the opinion of the court.2

2 Justice Prosser’s partial concurrence criticizes my post-Linville analysis through use of a pre-Linville case, Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991) (and, even more daringly, through use of a pre-1983 Wis. Act 418 case, Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980)). Concurrence, ¶¶125, 127. The partial concurrence notes that the author of Linville was also the sole dissenter from Ervin. Concurrence, ¶128. If the question is whether Linville eroded any of the principles in Ervin, one would think this fact hinders rather than helps the partial concurrence’s case. Regardless, there is no need to attempt to divine the meaning of Linville’s authorship, because my analysis is not “squarely at odds” with Ervin. Concurrence, ¶125.

This is because the City of Kenosha’s (“the City”) actions in Ervin were arguably performed [**36] in its capacity as property owner rather than, for instance, in its capacity as a business owner. The facts underlying that case took place at a beach owned by the City of Kenosha and “staffed by four lifeguards employed and trained by the City.” Ervin, 159 Wis. 2d at 469-70. In the summer of 1987, two minors drowned in the water off the beach. Id. at 468-69. The City was sued, among other things, for the alleged negligence of its lifeguards and for its own allegedly negligent hiring and failure to train them. Id. at 471-72. This court held that the City was immune from such allegations under the recreational immunity statute. Id. at 469.

Returning to my earlier hypothetical, Ervin is analogous to a circumstance in which a cliff-owner (or somebody hired by the cliff-owner) stands by and watches while a climber using the cliff for free plummets to her death. Nothing in Ervin indicates that the City was stepping outside of its role as landowner (indeed, it had not formally interviewed its lifeguards or even provided its lifeguards with “skills testing [or] lifeguard, first-aid or rescue training”). Id. at 471. Put differently, although the Ervin court seemingly rejected an “active/passive negligence distinction” with respect to landowners’ negligence under [**37] the recreational immunity statute, the court said nothing about the operation of the statute when landowners act in a non-proprietary capacity. See, e.g., id., at 476-77 (“If liability were imposed on landowners for negligence in failing to provide adequate safety measures, it would encourage landowners to provide no safety measures.” (emphases added)). That came later, in Linville. As opposed to Ervin, wherein the City had “gratuitously” provided a few “lifeguards” without “skills testing [or] lifeguard, first-aid or rescue training” to stand post on the single parcel of property at issue, id., 471-77, the City of Janesville operated a team of paramedics which provided city-wide services and which had little to do with the ownership of the municipal pond in particular. See State v. Linville, 184 Wis. 2d 705, 720-21, 516 N.W.2d 427.

While I understand the partial concurrence’s reading of Linville and find it to be a reasonable one in isolation, it is at odds with a principal expositor of Linville, Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997). Justice Prosser would need to overrule a substantial amount of law to arrive at his interpretation of the recreational immunity statute.

[*P82] For the foregoing reasons, I respectfully concur.

DISSENT BY: DAVID T. PROSSER (In Part); REBECCA G. BRADLEY

DISSENT

[*P83] DAVID T. PROSSER, J. (concurring in part; dissenting [**38] in part). This case involves an unfortunate accident that occurred at a charity event in Beaver Dam on July 30, 2011. I agree with the majority opinion that “Sundog’s waiver of liability form violates public policy and is unenforceable as a matter of law.” Majority op., ¶4. However, I also agree with the dissenting opinion of Justice Rebecca G. Bradley that “Sundog meets the statutory requirements to obtain recreational immunity because: (1) it falls within the definition of ‘owner,’ which includes ‘a person . . . that . . . occupies property;’ and (2) Patti Roberts engaged in a recreational activity on the property occupied by Sundog.” Dissent, ¶132. Consequently, I join the dissenting opinion of Justice Rebecca Bradley except for footnote 4.

[*P84] My purpose in writing is to reinforce the inexorable logic of Justice Bradley’s dissent and respond to the concurrence of Justice Ziegler.

[*P85] Wisconsin Stat. § 895.52 reads in part as follows:

(2) NO DUTY; IMMUNITY FROM LIABILITY. (a)

Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner’s property to engage in a recreational activity:

. . . .

3. A duty to give warning of an unsafe condition, [**39] use or activity on the property.

(b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for . . . any injury to . . . a person engaging in a recreational activity on the owner’s property . . . .

[*P86] Critical to the interpretation of this statute is the definition of “owner.”

“Owner” means either of the following:

1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property.

2. A governmental body or nonprofit organization that has a recreational agreement with another owner.

Wis. Stat. § 895.52(1)(d).

[*P87] In this case, we should analyze three different entities: (1) Beaver Dam Conservationists, LLC; (2) Green Valley Enterprises; and (3) Sundog Ballooning, LLC (and its owners, Kerry M. Hanson and Jodi L. Hanson) (Sundog).

[*P88] “Beaver Dam Conservationists, LLC . . . owned the shooting range where the charity event was held.” Majority op., ¶5. The shooting club was thus an owner.

[*P89] The shooting club donated use of its property to Green Valley Enterprises, a charitable organization, which opened the property free to the public as part of a charitable fundraiser. Of course, Green Valley could not have opened up the property to the [**40] public if Beaver Dam Conservationists had not “opened up” the property for Green Valley’s charitable event.

[*P90] Green Valley was an “owner” under Wis. Stat. § 895.52(1)(d)1. because it occupied the property with the permission of an owner. In addition, it was an owner under (d)2. if it signed “a recreational agreement” with Beaver Dam Conservationists.1 Whether Green Valley actually signed a “recreational agreement” is not known.

1 “Recreational agreement” is defined in Wis. Stat. § 895.52(1)(h) to mean “a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specific part of the owner’s property for any recreational activity.”

[*P91] The principal issue in this court is whether Sundog also is an “owner” by virtue of occupying the property.

[*P92] This was not the principal issue in the circuit court. In fact, this was not an issue at all in the circuit court. In its motion for summary judgment, Sundog explained at length that it was an “owner” under the statute because it occupied the property.

[*P93] The plaintiffs did not dispute this contention. The plaintiffs instead took a different position:

The liability of the Defendant in this case has absolutely nothing to do with the condition [**41] of the land, any structures upon it, or use of the land itself by the Plaintiffs or the Defendant.

. . . .

Negligent acts or decisions not directed at the condition of the land are not entitled to immunity.

[*P94] The Dodge County Circuit Court, Joseph G. Sciascia, Judge, wrote the following: “The [plaintiffs] do not dispute that the plaintiff was on the property for a recreational purpose. The plaintiff raises the issue of whether or not the statute applies in this case because the injury was caused by an act unrelated to the condition or maintenance of the land . . . .”

[*P95] Whether Sundog occupied the property was not an issue in the court of appeals either. The court’s opinion stated:

Roberts does not contest that Sundog was occupying, and therefore was an “owner” of, “property” on which Patti Roberts was engaging in “recreational activity.” See Wis. Stat. § 895.52(1)(d), (f), (g). Roberts also does not dispute that “the activity giving rise to [Patti Roberts’] injury was a ‘recreational activity’ as defined by the statute,” that is, ballooning.

Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶16 (Wis. Ct. App. Mar. 26, 2015) (alteration in original).

[*P96] The reason why “occupies” is the principal issue in this court is because [**42] this court made it the principal issue by asking the parties to brief it. The court’s order granting review stated in part:

IT IS FURTHER ORDERED that the parties’ briefs shall address the following additional issue:

Whether the defendants/respondents Sundog Ballooning, LLC, Kerry M. Hanson, and Jodi L. Hanson, were “occupiers” of the property in question for purposes of the recreational immunity statute at the time of the accident in question. See Wis. Stat. § 895.52(1)(d); see also Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).

[*P97] This court has broad authority to ask that additional issues be briefed, but the court should be careful not to fault a party for failing to supply complete evidence on an issue that was not contested, or chide a party for not arguing or briefing an issue that was not necessary because of the party’s success in circuit court on a more encompassing issue. See Majority op., ¶33 n.6.

[*P98] As I see it, Sundog took possession of a large, wide-open space at the recreational property of Beaver Dam Conservationists at the express invitation of Green Valley Enterprises. Its balloon was tethered to two trees and a pickup truck that was brought into and parked on the property. The two trees and truck formed a triangle with the large balloon in [**43] the middle. The Hansons flagged off the whole area. They set up a display and a sign-up table for the balloon ride, and they designated a waiting area for people to line up for a ride. In short, the Hansons completely controlled one section of the property for their ballooning operation. They “filled up” the space. They not only “used” the space but also governed the space during the time they were authorized to be there. In sum, they occupied the property.

[*P99] In Doane, the court of appeals said, “An occupant is one who has actual possession of the property, but is more transient than either a lessee or an owner with legal title.” Doane, 216 Wis. 2d at 351 (citing Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 491, 431 N.W.2d 696 (Ct. App. 1988)). This, in essence, is the rule applied in multiple cases. There can really be no dispute that Sundog satisfied the test of “occupies” under this rule.

[*P100] The Doane court added, however, that “‘occupancy,’ in the statutory sense, signifies a degree of permanence, as opposed to the mere use of the property in question.” Id. (citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir. 1987)). The Doane court later stated:

“Occupy” is defined as “to take and hold possession.” Webster’s New Collegiate Dictionary 794 (8th ed. 1974). That definition could imply possession for some unstated period of time or it could [**44] be understood in a way in which time is not relevant. Therefore, reasonable persons could differ in their assessments of whether Ehle “occupied” a portion of the lake with his shanty within the meaning of the statute. However, occupy, as used in § 895.52 Stats., has been defined by this court as requiring a degree of permanence, as opposed to mere use. See Hall, 146 Wis. 2d at 491, 431 N.W.2d at 698 (citing Smith, 823 F.2d at 1197).

Id. at 354 (emphasis added).

[*P101] The court of appeals reached the correct decision in Doane, but it did so, at least in part, for the wrong reason. The Hall case never discussed “a degree of permanence” because Hall never quoted that portion of the Seventh Circuit’s opinion. Hall clearly sidestepped the “permanence” part of the Seventh Circuit’s opinion and instead quoted language that the Seventh Circuit had quoted from the underlying District Court decision. The language quoted from the District Court’s decision made absolutely no reference to “permanence.” Until Doane, no Wisconsin case had ever used the phrase “degree of permanence.”

[*P102] The Hall case involved a Lions Club in Turtle Lake that sponsored a fair on the grounds of the Turtle Lake Village Park. The Village granted the Lions permission to use the park. The Hall court said: “[W]hen a third [**45] party such as the Lions Club produces a fair on the land of another, it ‘occupies’ the land within the intended definition.” Hall, 146 Wis. 2d at 490. Then the court quoted language that the Seventh Circuit had quoted from the underlying District Court decision in Smith:

[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land.. . . . While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.

Id. at 491 (alterations in original)(quoting Smith, 823 F.2d at 1197, which had quoted Smith v. Sno Eagles Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).

[*P103] If the Doane case is controlling, it substantially changed the law in Wisconsin, disregarding prior court of appeals precedent, when it quoted from the Seventh Circuit’s independent analysis in Smith, rather than language quoted from the District Court’s underlying decision.

[*P104] In the Seventh Circuit case, the losing party, Smith, relied on Labree v. Millville Manufacturing, Inc., 195 N.J. Super. 575, 481 A.2d 286 (N.J. Super. Ct. App. Div. 1984), a New Jersey case in which a contractor was sued after excavating land as part of the construction of a highway. Smith, 823 F.2d at 1196-97. “The excavation and transfer of sand and gravel resulted in [**46] the man-made creation of a twenty acre lake in which people swam on an informal basis.” Id. at 1197. David Labree later dove into the lake and hit his head, rendering him a quadriplegic. Id. The contractor, who was sued after he had left the land, claimed recreational immunity under a New Jersey statute. The New Jersey court said:

We believe use of the word “occupant” in the statute signifies an intent to provide immunity for an entity with a degree of permanence in the occupancy, not merely one who is using the property, as was the case with Gaskill. [Gaskill] “occupied” the property not really as one in occupancy but rather as one removing dirt and gravel from it.

Id. (alterations omitted)(quoting Labree, 481 A.2d at 291).

[*P105] The Seventh Circuit opinion in Smith borrowed the “degree of permanence” language from the New Jersey court and used it against the losing party. But it is very doubtful that the Seventh Circuit intended to create a “degree of permanence” test for “occupants.” Indeed, the Seventh Circuit favorably referred to the language from the underlying District Court opinion, quoted in Hall, when explaining that if the court “were to circumscribe and interpret ‘occupant’ as one in actual possession or exclusive [**47] control the term would be indistinguishable from owner.” Smith, 823 F.2d at 1198. Our court of appeals should not have embraced the phrase “degree of permanence” as established Wisconsin law to bootstrap its decision in Doane.

[*P106] This court cannot adopt the “permanence” test from the Seventh Circuit decision without overruling Hall and numerous other cases, and also effectively ruling that Green Valley Enterprises did not “occupy” the property. If a “permanence” test disqualifies Sundog, it would disqualify Green Valley Enterprises as well because Green Valley did not own or lease the property—-it occupied the property. Green Valley’s few extra hours of occupancy at the shooting range cannot realistically be viewed as being more “permanent” than Sundog’s occupancy.

[*P107] The majority’s decision to disqualify Sundog from any status as an “owner” and send this case back for trial does not end the immunity issue. If Green Valley is still considered an occupant, we must anticipate that Sundog will assert that it was Green Valley’s “agent” under Wis. Stat. § 895.52(2)(a) and (b). There is no definition of “agent” in the recreational immunity statute, meaning that the circuit court may resort to a dictionary. “Agent” is defined as (1) one that acts [**48] or has the power or authority to act, or (2) one empowered to act for or represent another. American Heritage Dictionary of the English Language 33 (3d ed. 1992).

[*P108] Kerry Hanson explained in his deposition that he and his wife lived in Rhinelander but had family ties to Beaver Dam. In fact, his sister, Kristin Hanson, was manager for agency development for Green Valley Enterprises. Kerry Hanson testified as follows:

Q. How was it that it came about that you were going to be involved in this event in the first place?

. . . .

A. –the head of the Green Valley Enterprises, a business that services special needs people, was actually in the neighborhood, saw my balloon tethered. He employs my sister, who is a marketing director for Green Valley Enterprises. He saw it and said, wow, what a cool thing; maybe we could use that at our fundraiser to increase awareness, and I believe that began the process.

Q. And eventually it was agreed that you would do that.

Correct?

A. Right.

Q. And it’s my understanding that you were donating your services that day?

A. Right.

[*P109] In other depositions, witnesses testified that Sundog’s balloon rides were advertised as an attraction for Green Valley Enterprises’ fundraising [**49] event.

[*P110] Under the circumstances, it would be rather difficult to conclude that Sundog was not an “agent” of Green Valley Enterprises if Green Valley was an “owner.”

[*P111] The “agent” of an “owner” is immune under the statute. However, the majority’s conceptual dilemma is that any “agent” in this situation is likely to be “a third party not responsible for opening up the land to the public,” Majority op., ¶33, which the majority now deems essential to qualifying for immunity: “Here . . . defining Sundog as an ‘occupier’ would not further the policy underlying the statute because the Conservationists’ property was already open for public recreational purposes.” Id., ¶35.

[*P112] The majority opinion adds, “Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.” Id., ¶37.

[*P113] This analysis would appear to deny immunity to any “officer, employee or agent” who did not “open up the land” to the public.

[*P114] This analysis also is deficient because it ignores the fact that people often come to a property because they have been attracted by the promise of recreational activities there. Example: the Roberts family [**50] came to the shooting range, in part, because they heard there would be balloon rides. If organizations and people providing bona fide recreational activities are stripped of recreational immunity because they did not “open up the land to the public,” they will have to rethink whether they are willing to participate in such activities.

[*P115] In sum, the majority opinion seriously misinterprets the meaning of “owner” in the statute.

[*P116] As noted above, the Robertses contended at trial that recreational immunity must be linked to a “condition of the land, any structures upon it, or use of the land itself.” See supra, ¶93. Justice Ziegler’s concurrence champions this proposition by relying on Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997).

[*P117] Linville is the tragic case in which a man took a mother and her four-year-old son to a city-owned pond in Janesville. The man intended to take the boy fishing, and he was checking out fishing spots for the next day. Through a series of bizarre events, the man drove his van too close to the water, got stuck in mud, then inadvertently drove the van into the water where he and the boy drowned. Plaintiffs sued the city claiming that the city’s paramedics were negligent in their rescue of the boy and negligent [**51] in providing medical services to the boy. The city defended with a claim of recreational immunity under Wis. Stat. § 895.52.

[*P118] This court first struggled with the question of whether the three people at the pond were engaging in a “recreational activity” at the time two of them died. The court said they were. But that did not settle the question of whether the city could claim recreational immunity for the alleged negligence of its paramedics in the rescue effort.

[*P119] The court determined that the city could not assert recreational immunity for the alleged negligence of its paramedics because it was virtually coincidental that the alleged negligence of the paramedics occurred at a city-owned recreational site and came after a mishap in recreational activity for which the city bore no responsibility.

[*P120] The court said: “The City’s immunity for its functions as owner of recreational land cannot shelter its liability for negligently performing another function.” Linville, 184 Wis. 2d at 711.

[*P121] In discussing this conclusion, the court observed: “We must determine whether this statute immunizes the paramedics and the City simply because the paramedics are employees of the City which owns the Pond.” Id. at 718.

[G]ranting immunity to the landowner when the landowner [**52] and the employer of the negligent employee are functioning in two different capacities and are therefore not the same entity in the eyes of the law would produce absurd consequences. . . . To interpret the language of sec. 895.52(2)(b), Stats., to include injury resulting from negligent rescue and treatment by the paramedics in this case, would produce absurd consequences.

Id. at 719. The court continued: “The paramedics provide emergency medical treatment in every part of the City, no matter the situs. Thus the City’s rescue attempts and medical treatment are separate and apart from the City’s ownership of or activities as owner of recreational land.” Id. at 721.

[*P122] The Linville court bolstered its analysis by repeated reference to the purported purpose of the recreational immunity statute, e.g., property owners should be encouraged to open up land to the public. In my view, this discussion of policy was not necessary to a limitation of immunity and is not relevant when dealing with public land that is intended for use by the public.2

2 Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), also is cited in Justice Ziegler’s concurrence. This case requires close examination.

Kosky involved a man whose hands were badly injured as he was participating in a three-person team detonating [**53] “explosive fireworks” at the annual Fourth of July fireworks celebration in Land O’Lakes, Wisconsin. Kosky sued the Land O’Lakes Lions Club and other sponsors of the show, as well as several co-workers. The defendants claimed recreational immunity under Wis. Stat. § 895.52.

In his brief to the court of appeals, the plaintiff asserted that the “extra-hazardous activity of detonating explosive fireworks” was not a “recreational activity” protected under Wis. Stat. § 895.52. (capitalization and title case omitted.) He also asserted that although he had ties to the area, he came from Niles, Illinois, at the specific request of the Land O’Lakes Lions Club “to perform work tasks with a team of people detonating explosive fireworks.” He declared that he personally was not engaging in recreational activity because he was working, not watching the fireworks.

The court of appeals rejected Kosky’s argument that the detonation of fireworks could not be a recreational activity because it is an inherently dangerous, extra-hazardous activity. Kosky, 210 Wis. 2d at 474. On the other hand, the court was not willing to say that the detonation of fireworks was a recreational activity in the circumstances presented. Instead, the court concluded that “recreational immunity [**54] does not attach to the landowner when an act of the landowner’s officer, employee or agent that is unrelated to the condition or maintenance of the land causes injury to a recreational land user.” Id. at 475.

The Kosky court quoted from Linville: “Extending immunity to landowners for negligently performing in a capacity unrelated to the land or to their employees whose employment activities have nothing to do with the land will not contribute to a landowner’s decision to open the land for public use.” Id. at 476 (quoting Linville, 184 Wis. 2d at 719).

To support this conclusion, Linville cited Ervin v. City of Kenosha, 159 Wis. 2d 464, 472-76, 464 N.W.2d 654 (1991), for the following proposition: “The legislature, in sec. 895.52, Stats., granted immunity to landowners with respect to the condition of the land and to the landowners’ (or its employees’) actions with respect to the land.” Linville, 184 Wis. 2d at 718.

As will be seen, this statement is not an accurate description of Ervin. Moreover, it does not take into account that lessees and occupiers and persons with a recreational agreement cannot “open the land” until the actual landowner puts them in a position to open the land. It also fails to acknowledge that public land is normally open to the public already.

[*P123] Justice Ziegler’s concurrence builds on Linville and would state the law [**55] as follows:

(1) While the policy of the recreational immunity statute encourages landowners to open their land to the public, the recreational immunity statute does not cloak negligent actors with immunity no matter what they do. Justice Ziegler’s concurrence, ¶67.

(2) A “person” who owns, leases, occupies, or has a “recreational agreement” to use recreational property is not sheltered from liability for “negligently performing” another function such as operating or otherwise participating in a “recreational activity,” as defined in Wis. Stat. § 895.52(1)(g). See id., ¶69. An “owner” under the statute “might sometimes function in a capacity unrelated to its ownership of the land, and that . . . owner should not be immunized against claims that the owner engaged in negligent conduct when operating in that capacity.” Id.

[*P124] Justice Ziegler writes that the “municipal owner of a pond in which a four-year-old boy drowned despite the efforts of paramedics employed by the owner was immune under § 895.52 from claims that its pond was negligently maintained, but not immune from claims that it negligently performed in its capacity as provider of paramedic services.” Id. (emphasis added).

[*P125] Justice Ziegler’s summary of the law is squarely [**56] at odds with the court’s discussion in Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991). In that case, two youths drowned at a public beach owned and operated by the City of Kenosha. The youths’ parents sued the City for negligently hiring and failing to properly train and instruct lifeguards, and for the lifeguards’ alleged negligent performance at the time of the drownings. This court was confronted with arguments about separating the City’s ownership of the land from its operation and oversight of the beach by its lifeguards. The court concluded that “the City is immune from liability . . . for its negligence in hiring or failing to properly train the lifeguards, [and] for the lifeguards’ negligent performance.” Ervin, 159 Wis. 2d at 469.

[*P126] The Ervin court’s opinion reads in part:

The parents argue that sec. 895.52(2), Stats., does not immunize the City from liability for the lifeguards’ negligence or for its own negligent hiring and failure to train them. The parents contend that the City’s conduct represented “active” negligence, and that the statute was intended to immunize only “passive” or “condition of the premises” negligence. We disagree because: (a) the plain language of the statute does not support this contention, (b) Wisconsin case law permits immunity under [**57] the recreational use statute for both active and passive negligence, and (c) legislative intent clearly supports granting immunity for both active and passive negligence.

Id. at 472.

[*P127] The Ervin court also quoted approvingly from this court’s decision in Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980):

The statute does not contemplate that the land subject to public recreational use shall remain static. Since the purpose of the statute was to open land for recreational use, it would be inconsistent for the statute to provide protection only if the owner or occupant does not perform any potentially negligent activities on the land.

Ervin, 159 Wis. 2d at 475 (alteration omitted) (quoting Wirth, 93 Wis. 2d at 446).

[*P128] It should be noted that the only justice who dissented in Ervin was Justice William Bablitch, the author of the Linville opinion. In his dissent, Justice Bablitch wrote:

By placing unqualified lifeguards on a public beach, the City of Kenosha . . . created a trap for the unwary. The presence of the lifeguards created the perception of a safe condition that was not justified. I do not agree with the majority that the recreational use statute exempts owners of recreational property from liability when the actions of the owner create a perception of safety that does not in reality exist. [**58] The legislature could not have intended such an absurd result.

Id. at 485 (Bablitch, J., dissenting). In Justice Bablitch’s Linville opinion, the court did not overrule Ervin.

[*P129] In her concurrence, Justice Ziegler formulates a rational policy of limited recreational immunity, but that policy would require this court to overrule a number of cases including Ervin and Wirth, disregard controlling language in the statute, and clean up internal inconsistencies in her own concurring opinion. If we were to assume the correctness of a strict separation of functions analysis, that separation would apply irrespective of whether the separation affects an owner, a lessee, an occupier, a recreational agreement holder, or an officer, employee, or agent of an owner. Neither the concurrence nor the majority opinion has confronted the consequences of such a change in the law.

[*P130] I would not hesitate for a moment supporting the unfortunate victim of this balloon accident if the statute provided a reasonable means to do so. I do not hesitate now to recommend that the legislature promptly review the recreational immunity statute. I respectfully dissent, however, from any notion that the court itself should rewrite the [**59] statute to reach a desirable objective.

[*P131] I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK joins this opinion.

[*P132] REBECCA G. BRADLEY, J. (dissenting). I would affirm the court of appeals1 and hold that Sundog2 is immune from liability under Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52(2).3 Sundog meets the statutory requirements to obtain recreational immunity because: (1) it falls within the definition of “owner,” which includes “a person . . . that . . . occupies property,” and (2) Patti Roberts engaged in a recreational activity on the property occupied by Sundog. See Wis. Stat. § 895.52(1)(d)1., (2)(b). By actually using the land during a charity event, Sundog meets the ordinary and accepted meaning of “occupies.” This conclusion comports with the legislative purpose of recreational immunity and would not, as the majority fears, result in the limitless application of the recreational immunity statute. As a result, I respectfully dissent from the majority opinion because a plain reading of the statute demonstrates Sundog is entitled to recreational immunity.4

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op. (Wis. Ct. App. March 26, 2015).

2 Sundog refers to the Respondents: Sundog Ballooning, [**60] LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company. See majority op., ¶2.

3 Whether Sundog met the statutory definition of an “owner” in Wis. Stat. § 895.52(1)(d)1. was not an issue before the court of appeals. In our order granting the petition for review, this court ordered the parties to brief and address that issue.

4 Because Sundog is entitled to recreational immunity, I would not reach the issue of whether the waiver of liability violates public policy.

Similarly, because I conclude that recreational immunity applies to Sundog, it is unnecessary to decide whether Sundog qualifies for recreational immunity based on its argument that the hot air balloon constitutes “property” under Wis. Stat. § 895.52(1)(f). I disagree, however, with the majority’s conclusion that because the hot air balloon was not “constructed on real property” it fails to meet the definition of property in the statute. See majority op., ¶45. Although the majority’s structure analysis could be read to require that the structure be built or put together on site, the majority suggests that for purposes of recreational immunity, a structure must be permanently affixed to real property. This requirement is not found in the text of the recreational immunity statute, [**61] but the majority imposes the requirement based on Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶17, 248 Wis. 2d 567, 636 N.W.2d 727. Peterson held that a tree stand used for hunting constituted a structure within the meaning of Wis. Stat. § 895.52(1)(f). Id., ¶4. The majority asserts that unlike Sundog’s hot air balloon, “the tree stand was permanent and built or constructed on the real property.” Majority op., ¶45. This differentiation between a hot air balloon and a tree stand, however, should not determine whether Sundog’s hot air balloon meets the common and ordinary meaning of the word “structure.”

Based on the statutory language alone, Sundog’s alternative argument for recreational immunity fails because Patti Roberts did not ever enter or get on the hot air balloon, which is required by the recreational immunity statute. See Wis. Stat. § 895.52(2)(a)(making recreational immunity available to owners when a person “enters the owner’s property”); see also Wis. Stat. § 895.52(2)(b)(making recreational immunity available to owners when “a person engag[es] in a recreational activity on the owner’s property”) (emphases added).

[*P133] Subject to exceptions not applicable in this case, property “owners,” as defined by Wis. Stat. § 895.52(1)(d)1.-2., are immune from liability for injuries sustained as a result of recreational activities that occur on their property. See Wis. Stat. § 895.52(2). The parties [**62] dispute whether Sundog meets the statutory definition of an “owner” to qualify it for recreational immunity. Applicable here is § 895.52(1)(d)1., which defines an owner as: “A person, including a governmental body or nonprofit organization, that owns, leases or occupies property” (emphasis added).5 There is no assertion that Sundog owns legal title to the property or that it leased the property in question. The only way that Sundog meets the statutory definition of “owner” is if Sundog “occupies [the] property.” See § 895.52(1)(d)1.

5 It is not disputed that Sundog Ballooning, LLC qualifies as “a person” in the definition of “owner” found in Wis. Stat. § 895.52(1)(d)1.

[*P134] Unlike “owner,” the word “occupies” is not defined in the recreational immunity statute. However, the plain, ordinary, and accepted meaning of “occupies” can be readily determined by reference to the dictionary definition of an “occupant.” An occupant is “[o]ne that resides in or uses a physical space.” Occupant, The American Heritage Dictionary of the English Language 1218 (5th ed. 2015). This definition indicates that a person who occupies property is one who has actual use of the property.

[*P135] Here, Sundog donated tethered, hot air balloon rides at a charity event sponsored by Green [**63] Valley Enterprises. To provide this recreational ballooning activity, Sundog set up the tethered hot air balloon on property legally owned by Beaver Dam Conservationists, LLC. It used both ropes and flags to designate an area surrounding the hot air balloon. These facts show that Sundog actually used the property to provide a recreational activity, ballooning, (specifically mentioned by Wis. Stat. § 895.52(1)(g)) when Patti Roberts sustained injuries. This actual use of the property meets the plain, common, and ordinary meaning of “[a] person . . . that . . . occupies property.” See Wis. Stat. § 895.52(1)(d)1. Therefore, Sundog meets the definition of a statutory owner as one who occupied the property and therefore is entitled to recreational immunity.

[*P136] This conclusion is consistent with the legislative purpose of the recreational immunity statute: to “limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit.” 1983 Wis. Act 418, § 1. This statement of legislative purpose is often summarized as “encourag[ing] landowners to open up their land for recreational activity.” Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991) (emphasis added); see majority op., ¶28. The [**64] purpose of the recreational immunity statute, however, is much broader as evidenced by the legislature’s decision to include in its definition of “owner” both lessees and occupiers of property. In interpreting the meaning of “property” defined by Wis. Stat. § 895.52(1)(f), we reached a similar conclusion: “[I]t is abundantly clear from the language of the statute and the statement of legislative intent that the purpose of the statute is broader, and recreational immunity is not in fact limited only to landowners.” Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶22, 248 Wis. 2d 567, 636 N.W.2d 727.

[*P137] This broad legislative purpose, evidenced by the legislative policy statement read in conjunction with the statutory text refutes the majority’s claim that “[i]mmunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.” See majority op., ¶37.

[*P138] Here, Sundog provided the recreational ballooning activity free of cost to members of the public who attended the charity event. Depriving Sundog of immunity because Green Valley and the Conservationists, rather than Sundog, “opened” the land to the public, creates a distinction between Sundog on the one hand, and Green Valley and the Conservationists on the other, that is not [**65] only unsupported by the broad legislative purpose of the recreational immunity statute but wholly absent from the statutory definition of the term “owner.” Furthermore, the creation of this unsupported distinction ignores the fact that the Conservationists allowed Green Valley to hold an event that included a recreational ballooning activity provided by Sundog. Sundog’s participation in the charity event undoubtedly encouraged the public to attend the event and, in some instances, take part in the recreational ballooning activity. Declining to recognize Sundog’s statutory immunity will discourage organizations such as Sundog from donating recreational activities at charity events for fear of incurring liability, which, in turn, will reduce sponsorship of such events by organizations because they will have less recreational options—-if any at all—-to draw attendance. Ultimately, public access to private land will be reduced. This runs counter to the legislative purpose of the recreational immunity statute.

[*P139] As further support for its decision to treat Sundog differently than Green Valley and the Conservationists, the majority indicates that prior case law has not granted immunity to [**66] a “third-party” organization such as Sundog. See majority op., ¶33. Simply because the appellate courts apparently have not previously been presented with a similar fact pattern does not eliminate immunity created by the statute. Sundog satisfies the requirements of the statute and therefore is entitled to the immunity it provides.

[*P140] Further, the majority does not explain how its conclusion—-that an organization such as Sundog that did not open land to the public cannot “occupy” the property—-accounts for the plain, ordinary, and accepted meaning of the term “occupies.” See majority op., ¶41. Although the majority opinion references the “requiring a degree of permanence, as opposed to mere use” definition of “occupies” utilized by the court of appeals in Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998), majority op., ¶34, it fails to apply the Doane definition to the facts of this case and fails to address the fact that the court of appeals has used differing definitions of “occupies,” as explained below, when determining whether an individual or group meets the definition of “owner” in Wis. Stat. § 895.52(1)(d)1.

[*P141] On several occasions, the court of appeals has addressed the meaning of “occupies” in the definition of “owner” under Wis. Stat. § 895.52(1)(d)1. and concluded that “occupies” [**67] requires actual use of the property. In Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 490-91, 431 N.W.2d 696 (Ct. App. 1988), the court of appeals adopted a definition of “occupies” from a case decided by the Seventh Circuit Court of Appeals:

[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land . . . . While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.

Id. at 491 (citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir. 1987))(quoting Smith v. Sno Eagles Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).6 Subsequent cases have cited Hall and relied on its definition of “occupies property.” See Leu v. Prince Cty. Snowmobile Trails Ass’n, Inc., 2005 WI App 81, ¶¶11-13, 280 Wis. 2d 765, 695 N.W.2d 889; Mooney v. Royal Ins. Co. of Am., 164 Wis. 2d 516, 521-22, 476 N.W.2d 287 (Ct. App. 1991); Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct. App. 1991).

6 Although Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), applied Wis. Stat. § 29.68, the precursor to Wis. Stat. § 895.52, both statutes grant recreational immunity to owners, lessees, and occupants. Compare Wis. Stat. § 29.68(1)(1981-82) with Wis. Stat. § 895.52(1)(d)1. and (2) (2013-14).

[*P142] However, in Doane, the court of appeals determined that “occupies property” within the definition of “owner” under Wis. Stat. § 895.52(1)(d)1. requires some degree of permanence in addition to actual use of the property. Doane, 216 Wis. 2d at 351. The court of appeals recently applied the some degree of permanence definition of “occupies” from Doane in WEA Property & Cas. Ins. Co., 2013 WI App 139, ¶21, 352 Wis. 2d 73, 841 N.W.2d 290.

[*P143] The majority, however, fails to apply the some degree of permanence definition of Doane [**68] to the facts of this case. Instead, it compares this case to Doane by focusing on the purpose underlying the recreational immunity statute—-to open up land for recreation. Majority op., ¶35. Doane involved the owner of an ice shanty on a lake already open for public recreational purposes, who was not present at the invitation of the titled owner or lessee but who was simply using public waters as any member of the public could. See Doane, 216 Wis. 2d at 348, 353-54. An entirely different situation is presented here, where Sundog, the owner of a hot air balloon, was invited to occupy land for purposes of attracting members of the public to a charity event by offering the recreational activity of ballooning. The majority likens Sundog to the owner of the ice shanty because the Conservationists’ property, like the lake in Doane, was already open for public recreational purposes; therefore, the majority reasons, recognizing immunity “‘would not further the policy which underlies the statute, i.e., of opening as much property as possible for recreational use . . . .'” Majority op., ¶35 (citing Doane, 216 Wis. 2d at 355). The majority’s analogy fails because in Hall, 146 Wis. 2d at 487, the Turtle Lake Lions Club was immunized from liability for an injury occurring on [**69] the grounds of a public park and in Lee, 164 Wis. 2d at 107, the Elk Rod & Gun Club was considered a “landowner” under the recreational immunity statute as an occupant of a city park. The recreational immunity statute simply does not restrict immunity to occupiers of land that is not already open to the public.

[*P144] The definition of “occupies” adopted in Hall comports with the plain, ordinary, and accepted meaning of the word as well as the legislative purpose of the recreational immunity statute. There is no temporal requirement embedded in the definition of occupy. The broad definition of “owner,” which expressly encompasses a person that “occupies” property, is not limited to those who “host” or “organize” an event on the land. The recreational immunity statute immunizes a person that “owns, leases or occupies property”; the statute does not restrict immunity to only those occupiers who are event “hosts” or “organizers,” a limitation the majority invents in this case. In an apparent attempt to further narrow the scope of recreational immunity beyond the words of the statute, the majority reads into the statute language that simply is not present. Whether recreational immunity should be further limited is [**70] a policy judgment for the legislature and not this court to make.

[*P145] Furthermore, I am not persuaded by the majority’s conclusion that granting recreational immunity to Sundog would result in the limitless application of Wis. Stat. § 895.52(2). See majority op., ¶¶38-40. A plain meaning interpretation of “occupies property,” requires actual use of the land. For example, in Mooney, 164 Wis. 2d at 522-23, the court of appeals held that a snowmobile club that had left the property following the conclusion of an event did not meet the definition of an occupier and could not receive recreational immunity. The same would be true of a hot air balloon manufacturer because the manufacturer is not located on the property at the event using the land, and therefore is not an “occupier.” It should go without saying that the recreational immunity statute does not extend to the manufacturer of Sundog’s balloon yet the majority uses this example to create an unnecessary limiting principle by stirring unfounded fears that otherwise “there will be no stopping point to recreational immunity” despite statutory language that plainly restricts immunity to those who own, lease or occupy property. See majority op., ¶39. Of course, the manufacturer of Sundog’s [**71] balloon fits none of these categories. The legislature created a stopping point. It is not this court’s role to second-guess the legislature’s policy judgments by moving the mark.

[*P146] Finally, the majority relies on Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), to declare a new limiting principle for recreational immunity. Majority op., ¶¶38-39. In Linville, the court declined to extend immunity to city paramedics providing services for injuries sustained during a recreational activity, noting that such services could take place days or weeks after the event and away from the site of the recreational activity. Linville, 184 Wis. 2d at 711, 720. Specifically, relying on Linville, the majority asserts that Sundog has “no connection to the land” and therefore should not qualify for recreational immunity. Majority op., ¶39. The use of Linville and this particular limiting principle is perplexing in two respects. First, the majority’s reliance on Linville implicitly addresses the Roberts’s alternative argument—-that an injury must arise from a condition associated with the land—- despite the majority opinion’s pronouncement that it does not decide this issue. See majority op., ¶4 n.4. Second, not only was Sundog present on the land during the charity event, but its [**72] hot air balloon was literally connected to the land by ropes that tethered the hot air balloon to two trees (and a truck) on the property. Unlike the paramedics in Linville, Sundog was the entity actually providing the recreational activity, notably one that is specifically mentioned as a “recreational activity” in the recreational immunity statute. See 895.52(1)(g).

[*P147] I would affirm the court of appeals and hold that Sundog is entitled to recreational immunity under Wis. Stat. § 895.52.

[*P148] For the foregoing reasons, I respectfully dissent.

[*P149] I am authorized to state that Justice DAVID T. PROSSER joins this dissent except for footnote 4.


Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state

This decision worked hard to defeat not only this release, but all releases in Wisconsin, even though the dissent laid out great arguments why the majority’s decision was not based on any business principle. Even a concurring opinion thought the majority decision was too broad.

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Date of the Decision: January 19, 2005

Plaintiff: Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem

Defendant: Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company

Plaintiff Claims:

Defendant Defenses: Release

Holding: for the Plaintiff

In this decision, the Wisconsin Supreme Court set release law back in the state. The decision, Atkins v. Swimwest violated a release on numerous grounds that would not hold up in other states. In a decision that may invalidate all releases in Wisconsin, the Court ruled that a release used by a swim club in conjunction with the registration statement was invalid as against public policy.

The plaintiff was the only surviving heir of the deceased and a minor. Consequently, the plaintiff was represented by a guardian ad litem. This is a person appointed by the court to represent the minor. The guardian ad litem may or may not be an attorney.

The decedent went to the defendant’s swimming pool for physical therapy. She entered the pool that day and was observed swimming a sidestroke up and down the length of the pool. Soon thereafter she was observed at the bottom of the pool. She was rescued, and CPR was started. She was transported to a hospital where she died the next day.

The decedent was not a member of the swim club, so she was required to sign a guest registration/release form. The form was titled “Guest Registration.” The form was a five 1/2 inch by five 1/2 inch card with release language that the court characterized as standardized. The card also required written personal information. The waiver information was below the registration information. The waiver language was:

I agree to assume all liability for myself without regard to fault, while at Swimwest Family Fitness Center. I further agree to hold harmless Swimwest Fitness Center, or any of its employees for any conditions or injury that may result to myself while at the Swimwest Fitness Center. I have read the foregoing and understand its contents.

The trial court dismissed the case based on the release. The appellate court certified the case to the Supreme Court of Wisconsin. Certified means they passed the case on up without a decision.

Summary of the case

The court first had a problem with the term fault. The term was described as overly broad. The court explained the term was not defined enough to indicate to the parties (the deceased) the exact legal claims that would be barred by the release. The court found the term fault could also cover intentional acts which the court specifically stated would violate public policy and consequently, void the release.

The court stated, “We have consistently held that “only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” From this, statement appears the court wants the specific possible risks to be enumerated; however, that is an impossible job for most recreational activities.

The Supreme Court then looked at the Public Policy issues. The court called the public policy test a balancing test. The court required a balancing of the needs of the parties to contract versus the needs of the community to protect its members. No other court has balanced the issue of a release for a recreational activity this way. No other decision has surmised that the needs of the community include protecting individual members from freedom to contract. The court did not even consider the issue that the purpose of swimming by the decedent was for medical care: her physical therapy which might have had some public policy basis.

The court examined the release’s language in a two-step process. “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived.  Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” The court stated the release served two purposes: (1) as a sign-in sheet for the facility and (2) as a release and therefore, did not meet the test they created.

In another statement the court stated, there was nothing conspicuous about the release language in the form. While other courts across the nation have continuously berated release writers about hiding the release language, wanting them to make sure the language was not hidden. Here the court goes one step further and wants the release language to be quite apparent and pointed out to the reader.

In one of the wildest statements in a court decision, the Supreme Court of Wisconsin stated that the decedent did not contemplate drowning.

…Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

Although you might look at slipping on the wet deck or stubbing your toe as you entered the water, what other possible risks exist in swimming other than drowning?

The next major blow to releases in general was the bargaining argument. The court stated the release was void because there was no opportunity for the decedent to bargain over the release language.

We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form.

We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain.

The term bargain means the court wants possible signors of releases to be able to negotiate the exculpatory language out of the release. As argued by the dissent, (judge who disagrees with the majority opinion) this would require every firm to hire an attorney to negotiate each release with each patron. As a condition of insurance, most providers of recreational insurance and/or health club insurances are requiring that every participant sign a release. If a participant does not sign a release and the release is a policy condition, there will be no insurance available to defend a claim.

Even if you could purchase insurance without using a release, at what cost would not having a release be worth? Based on two cases that have occurred, the person who is injured is the person who did not sign the release. So the cost of not have a patron sign a release is equal to their possible claims. If you want to join the health club and sign a release the cost is $79.00 per month with a $100 membership fee. If you want to join without signing a release, the cost is $89.00 a month with a $5 million-dollar membership fee.

The failure bargain to remove the release language was a violation of public policy. How? The court does not enumerate, nor do the concurrence and the dissent provide much additional information; however, both the concurrence and the dissent recognize the fallacy of the bargain requirement.

In the one point of illumination, court summed up their decision in the last paragraph:

In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim.  The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

The dissent is a well-thought-out argument about what is good and bad about the release and what is very bad about the majority’s opinion; however, the dissent, a minority of one, has no real value.

So Now What?

The solution to this issue is to use the word negligence. Negligence has a specific legal definition and specifically/legally defines the parameter of the release. The only specific statement from the decision that could be considered directional in writing releases was the statement that the word release should have been used in the form.

Why not? Why risk having your release thrown out because you failed to put in one additional sentence.

The next problem was the release was part of a registration form. The court included this as a reason the release did not meet its public policy test. This problem would have been resolved if the release was on a separate sheet of paper and clearly marked with a heading and/or notice above the signature line that the document was a release.

The court then went on in this vein and stated the exculpatory language in the release should have been highlighted or been more visible to someone signing the release.

From this decision, in Wisconsin you must!

1.                  Your release must be on a separate and distinct piece of paper.

2.                You release must be identified and clearly state it is a release.

3.                The release must use the magic word “negligence” to be valid.

4.                You need to list all of the possible injuries or risks that can befall the signor of the release.

5.                 Your release must be read by the parties and there should be a notice in the release that the signor read, understood and signed the release with the intention to give up their right to sue for injuries or death.

If you can, you should see if you can provide:

6.                The opportunity for your patron to buy their way out of the release.

7.                 References to other competitors where a guest may be able to go to have a similar opportunity without signing a release.

8.                8.  Make sure your insurance is up to date and adequate for the value of your business and your risk.

Always in any business.

9.                Make sure your corporate records are up to date. If you are not incorporated or an LLC get incorporated now!

10.            10.         Look into separating assets from operations in separate corporations or LLC’s and divide your business into separate, smaller entities to protect the business.

11.              11. Look into asset protection planning for your personal assets.

What do you think? Leave a comment.

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Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022

Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022

Michael Yauger and Brenda Yauger, Plaintiffs-Appellants, v. Skiing Enterprises, Inc., d/b/a Hidden Valley Ski Area, a Wisconsin corporation, and Investors Insurance Company of America, a foreign corporation, Defendants-Respondents.

No. 94-2683

COURT OF APPEALS OF WISCONSIN

196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022

July 12, 1995, Oral Argument

August 23, 1995, Opinion Released

August 23, 1995, Opinion Filed

PRIOR HISTORY: [***1] APPEAL from a judgment of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge.

DISPOSITION: Affirmed.

COUNSEL: On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gary L. Bendix and John M. Bruce of Savage, Gregorski, Webster, Stangel & Bendix, S.C. of Manitowoc. There was oral argument by John M. Bruce.

On behalf of the defendants-respondents, there was a brief and oral argument by Thomas B. Hartley of Guttormsen, Hartley & Guttormsen of Kenosha.

JUDGES: Before Anderson, P.J., Brown and Snyder, JJ.

OPINION BY: BROWN

OPINION

[**836] [*490] BROWN, J. We are asked to gauge whether the exculpatory contract in this case is void as against public policy. Here, Brenda and Michael Yauger brought a wrongful death action against Hidden Valley Ski Area after their eleven-year-old daughter, Tara, was killed when she struck the concrete base of a ski lift tower. The trial court dismissed the claim finding that the [*491] Yaugers’ contract with Hidden Valley for a season pass contained a valid exculpatory clause. The Yaugers now reassert their challenge that [***2] it is void.

The following facts were taken from the appellate record consisting of the pleadings, affidavits and depositions. On October 8, 1992, Michael Yauger submitted an application for a family season pass at Hidden Valley. This form is reproduced at the end of the opinion. The pass cost roughly $ 720. Although only Michael signed the application, his wife and two daughters (then ages ten and eight) were named on the form. Depositions reveal that Michael submitted the application in person at the Hidden Valley Ski Shop.

The Yauger family was familiar with Hidden Valley. Michael had skied there approximately sixty times in the three seasons prior to the accident, and Tara had skied there about fifty times prior to her accident. The record also shows that the Yauger family had a season pass at the resort the prior year.

On March 7, 1993, Tara suffered her fatal accident. The exact facts surrounding her death are unsettled, but the record currently suggests that she struck the side of a concrete base of a ski lift tower. The Yaugers sued Hidden Valley that October, claiming that this support was not adequately padded.

After limited discovery, Hidden Valley and its insurer [***3] sought summary judgment on grounds that the exculpatory release within the Yaugers’ contract for a season pass barred them from bringing this claim since it arose out of the “certain inherent risks in skiing.” The Yaugers responded that the clause was invalid as against public policy because it was not knowingly entered into by each of the Yaugers, was ambiguous and overbroad and also attempted to encompass protections provided under Wisconsin’s safe-place law.

[*492] The trial court granted Hidden Valley’s motion. It focused its analysis on the phrase “certain inherent risks in skiing” and reasoned that it covered the type of injury that killed Tara, namely, the risk that a skier will collide with a stationary object. It also rejected the Yaugers’ argument that Brenda Yauger was not bound by the exculpatory clause, finding that her express endorsement was not necessary since she received the benefit of the season pass.

We are reviewing a grant of summary judgment; thus, § 802.08(2), STATS., governs [**837] the analysis. See Decade’s Monthly Income and Appreciation Fund v. Whyte & Hirschboeck, S.C., 164 Wis. 2d 227, 230, 474 N.W.2d 766, 767 (Ct. App. 1991), aff’d, 173 Wis.2d 665, [***4] 495 N.W.2d 335 (1993). [HN1] Summary judgment is appropriate when there are no material issues of fact and the moving party is entitled to judgment as a matter of law. Id. Moreover, this appeal concerns the interpretation of a contract which appellate courts address de novo. Id. at 230-31, 474 N.W.2d at 767. Therefore, to defeat Hidden Valley’s motion for summary judgment the Yaugers must show that material facts are in dispute, or that the trial court erred in its analysis of the exculpatory clause. See id. at 230-31, 474 N.W.2d at 767.

We first turn to the analysis of the season pass and its exculpatory clause. Wisconsin law does not favor these agreements and courts therefore examine with care the facts of each case to ascertain whether enforcement will contravene public policy. See Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173, 176 (1982). The goal is to strike a balance between conflicting principles of contract and tort law. See id. at 211, 321 N.W.2d at 177. [HN2] Freedom of contract suggests that [*493] courts should abstain from interfering in people’s relationships and personal affairs. See id. On [***5] the other hand, tort law recognizes that those responsible for causing harm through negligence should bear the cost of the harm and should not be allowed to circumvent this duty through contract. See id. at 211-12, 321 N.W.2d at 177.

A review of the recent supreme court cases on this issue indicates that there are two aspects to the question of whether an exculpatory contract violates public policy. In Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991), the court cited with approval § 195 of the RESTATEMENT (SECOND) OF CONTRACTS (1979), which sets out a series of situations in which an exculpatory contract would violate public policy. Id. at 515-16, 468 N.W.2d at 658-59 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983)). The first element tests the effect of the exculpatory clause, e.g., does it exempt an employer from suits by an employee. See id. 1

1 This two-prong analysis was also discussed in Discount Fabric House v. Wisconsin Telephone Co., 117 Wis. 2d 587, 602, 345 N.W.2d 417, 424-25 (1984), where the court faced a challenge to an exculpatory release that served to cover any errors in telephone directory advertising. The court explained that the analysis of such contracts involves an assessment of the “commercial reasonableness” of the terms (substantive) and the relationship between the parties during negotiations (procedural). Id.

[***6] The Yaugers’ assertion that the exculpatory clause in Hidden Valley’s season pass application contravenes the safe-place statute, § 101.11, STATS., fits this line of analysis. In further support of this argument they cite Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 111 [*494] N.W.2d 500 (1961), for the proposition that a for-profit winter sports park was subject to the safe-place law. In substance, they argue that the exculpatory clause violates public policy because it seeks to relieve Hidden Valley of the duty imposed by the statute. See RESTATEMENT (SECOND) OF CONTRACTS § 195(2)(c). 2 The trial court rejected this argument, reasoning that the safe-place statute did not create a special cause of action, but established a higher duty of care for what would ordinarily be addressed through common law negligence.

2 The applicability of the safe-place statute, § 101.11, STATS., in situations where frequenters challenge exculpatory contracts was raised, but left unanswered, in Kellar v. Lloyd, 180 Wis. 2d 162, 178-81, 509 N.W.2d 87, 93-94 (Ct. App. 1993).

[***7] While we agree with the trial court’s result, a different analysis is appropriate. Moreover, we need not decide the issue of whether the safe-place law imposed a special statutory duty on Hidden Valley. We hold that even if the statute does apply, a potential defendant may still bargain for an exclusion.

As noted above, the supreme court has endorsed § 195 of the RESTATEMENT (SECOND) OF CONTRACTS. See Merten, 108 Wis. 2d at 212-13, 321 N.W.2d at 177-78. 3 [*495] The [**838] official comment to this section, however, suggests that the enumerated standards are not a litmus test for these agreements; it states: “the rigor of this rule may, however, be mitigated by a fairly bargained for agreement to limit liability to a reasonable agreed value in return for a lower rate.” RESTATEMENT (SECOND) OF CONTRACTS § 195 cmt. a.

3 We recognize that the exact status of RESTATEMENT (SECOND) OF CONTRACTS § 195 (1979), is somewhat clouded. In Dobratz v. Thomson, 161 Wis. 2d 502, 515-16, 468 N.W.2d 654, 658-59 (1991), the court expressly quoted all the subsections after noting that it had originally “referred with approval” to them in Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983). When one examines the Arnold opinion, however, it includes only a general reference to the RESTATEMENT. Indeed, the rule in § 195(2)(c), which provides the basis for the Yaugers’ argument, was not referred to in the discussion. See Arnold, 111 Wis. 2d at 210-11, 330 N.W.2d at 777. Moreover, in the supreme court’s most recent exploration of these issues, the majority opinion made no reference to § 195, although it did reaffirm its confidence in the Dobratz decision. Richards v. Richards, 181 Wis. 2d 1007, 1014, 513 N.W.2d 118, 121 (1994). We have located a federal district court case in which the various subsections of § 195 were found to be a component of Wisconsin law and formed the basis for voiding an exculpatory contract. See RepublicBank Dallas, N.A. v. First Wisconsin Nat’l Bank, 636 F. Supp. 1470, 1473 (E.D. Wis. 1986) (voiding clause exempting liability for harm arising out of reckless or intentional acts). We thus find that § 195 continues to be a valid component of Wisconsin common law.

[***8] The process envisioned by the drafters of this comment aptly describes the transaction between the Yaugers and Hidden Valley. The Yaugers wanted a discount on their skiing. The resort was a willing supplier, but recognized that the increase in days skied would directly increase the risk of an accident and the potential for a damages claim. Hidden Valley therefore sought a release from liability. Gauging the deal at the time when the parties entered into the contract, we cannot say that the exchange was totally unreasonable. The Yaugers obtained their discount, but lost the right to bring a claim arising out of an accident which may never have occurred. Here, freedom of contract requires that we not delve deeper into the merits of this agreement. [*496] See Merten, 108 Wis. 2d at 211, 321 N.W.2d at 177. 4

4 Of course the above analysis certainly does not summarize all the concerns of the bargaining parties. The Yaugers and Hidden Valley were also making allowances for the risk that there would be no snow that season. The key to understanding our analysis, however, is to recognize that courts rarely are able to do a better job of writing contracts than the parties themselves.

[***9] The second prong of the public policy question entails examining the circumstances surrounding the bargaining process. See Dobratz, 161 Wis. 2d at 516 n.2, 468 N.W.2d at 659. For example, in Richards v. Richards, 181 Wis. 2d 1007, 1010, 513 N.W.2d 118, 119 (1994), 5 the supreme court was asked to review an exculpatory contract signed by a passenger in a commercial, long-haul truck. The plaintiff was married to a driver employed by the defendant and was asked to sign a “passenger authorization” before joining her husband on the road. Id. at 1012, 513 N.W.2d at 119. Within the form was a clause releasing the defendant from liability for any harm that might occur during her travels. Id. Still, the wife brought suit after she and her husband were involved in an accident. The lower courts found that the release was valid and granted summary [*497] judgment for the defendant. Id. at 1010, 513 N.W.2d at 119.

5 We discuss Richards in detail because it represents the supreme court’s most recent analysis of how flaws in the specific terms of an agreement, or the circumstances of the bargaining process, may serve as grounds for voiding an exculpatory agreement. For other examples, see Merten v. Nathan, 108 Wis. 2d 205, 214-15, 321 N.W.2d 173, 178 (1982) (release invalidated because defendant misrepresented a fact during the negotiation process), and Eder v. Lake Geneva Raceway, 187 Wis. 2d 596, 610-11, 523 N.W.2d 429, 434 (Ct. App. 1994) (release clause found to be ambiguous).

[***10] After its review of the contract, however, the supreme court found it to be void as contrary to public policy. Id. at 1011, 513 N.W.2d at 119. The majority pointed to three aspects of the agreement, which together led to this conclusion. First, the contract served two purposes. The court emphasized that the exculpatory clause was not distinguishable from other components of the document. It reasoned that highlighting the release provision would have provided greater protection for the signing party. See id. at 1017, 513 N.W.2d at 122.

Next, the court found that the contract was over-inclusive. It applied not only to the [**839] defendant, but also to all of its affiliates. Moreover, it did not delineate the nature of claims that would be excluded, such as those arising from negligence but not from intentional acts. Also, the time period through which the exclusion would apply was not limited. The majority found that the contract was lopsided in favor of the defendant and should therefore be construed against the company. See id. at 1017-18, 513 N.W.2d at 122.

Finally, the court noted that the release was embodied in a standard form contract, and the defendant [***11] did not inform the plaintiff of the purpose and effect of the authorization. This suggested that there was little or no opportunity to dicker about the terms. Id. at 1019, 513 N.W.2d at 123.

The Yaugers cite Richards and raise a number of arguments, each suggesting that they and Hidden Valley were not on equal footing when they entered into this agreement. The many issues they raise can be distilled into three central points. First, the Yaugers contend that the release clause, which was a single [*498] term in the season pass application, was never pointed out to Michael before he completed and signed the form. See Richards, 181 Wis. 2d at 1019, 513 N.W.2d at 123. They further assert that summary judgment was inappropriate because Hidden Valley presented no evidence on this issue.

We are not persuaded. This agreement was signed in October, at least one month prior to the skiing season. There was no sense of urgency. Michael could have taken the form home for further consideration. In addition, the Yaugers had purchased a season pass for the prior year. Therefore, Michael had a source of knowledge from which to draw comparisons. Compare Eder v. Lake [***12] Geneva Raceway, 187 Wis. 2d 596, 609, 523 N.W.2d 429, 433 (Ct. App. 1994)(noting that parties signing the release were not allowed onto the racetrack grounds until they signed the release form).

Next, the Yaugers assert that the language within the exculpatory clause is ambiguous. It specifically addressed “certain inherent risks in skiing.” They question what constitutes these “inherent risks” and whether the clause only applies to a “certain” number of these dangers. In addition, they note that Hidden Valley did not provide any evidence which would identify these risks. The Yaugers also raise concerns that the clause (which is composed of a single sentence) reads to limit Hidden Valley’s liability for any injury occurring on the premises. They stress that this could be reasonably interpreted as an attempt to limit the resort’s liability for any accident on the premises, such as a slip and fall in the restaurant. See Richards, 181 Wis. 2d at 1017-18, 513 N.W.2d at 122.

The trial court concluded that the terminology covered the obvious dangers in skiing, viz, falling down or [*499] colliding with another skier or a fixed object, and that the “any injury” language was limited [***13] to those harms arising out of these risks. We agree.

[HN3] Whether a contract is ambiguous is a question of law. Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). We test whether the term is reasonable or fairly susceptible of more than one construction. Id. [HN4] A clause is not ambiguous, however, merely because its language is general or broad. See Wilke v. First Federal Savs. & Loan Ass’n, 108 Wis. 2d 650, 654, 323 N.W.2d 179, 181 (Ct. App. 1982).

This was a contract between Hidden Valley and a season pass holder. The contracting skier, therefore, could reasonably be expected to have some knowledge about the sport. The Yaugers’ interest in skiing is further demonstrated by their willingness to commit over seven hundred dollars to skiing that season. 6 The record also reveals that the Yaugers had a similar pass at the resort the prior year. We are thus hesitant to accept their arguments that such language would lead to confusion among parties executing these agreements. The language is plain and simple. It aptly describes the risks that [**840] arise whenever one’s skis are in contact with the slope. 7

6 The season pass was not refundable.

[***14]

7 Very similar language can be found in Wisconsin’s recreational responsibility law. See § 895.525(3), STATS. (“A participant in a recreational activity … accepts the risks inherent in the recreational activity ….”) (emphasis added). Moreover, several states have adopted specific skier responsibility laws which codify these terms. For example, Colorado law provides, in part:

“Inherent dangers and risks of skiing” means those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

COLO. REV. STAT. ANN. § 33-44-103(10) (West Supp. 1994) (emphasis added).

Further discussion of these laws, and judicial efforts in providing interpretation, are set forth in Arthur N. Frakt and Janna S. Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 IDAHO L. REV. 227 (1991-92).

[***15] [*500] Finally, the Yaugers argue that the exculpatory clause should be held void because it was “not clearly identified or distinguished.” See Richards, 181 Wis. 2d at 1017, 513 N.W.2d at 122.

The trial court noted that although the exculpatory language was not highlighted, there was no indication that it was disguised and therefore did not provide grounds for rendering the agreement void. Indeed, the clause is set out in a separate paragraph.

Any break in text requires the reader to pause and thus provides a moment for reflection.

The face of the application does not otherwise suggest that Hidden Valley was trying to trick season pass holders into signing away their rights. It was an application form. Not only did the applicants have to sign the agreement, but they had to furnish information [*501] such as their address, age, other family member names, etc. In sum, the form and application process provided ample opportunity for Michael to consider the terms of the agreement.

We have addressed a variety of concerns about the exculpatory clause of the season pass contract. Although no single point is troublesome enough to render the clause void, Richards suggests that [***16] courts may consider all these aspects together when making a determination about the effects of public policy. See id. at 1011, 513 N.W.2d at 119. But even the totality of the circumstances presented here does not warrant that this contract be set aside. The contracting process simply does not raise any concern of overreaching by the party seeking to be released from liability. 8

8 The Yaugers raised one other challenge to the exculpatory clause relating to the contract language. They assert that under Hortman v. Otis Erecting Co., 108 Wis. 2d 456, 463, 322 N.W.2d 482, 485-86 (Ct. App. 1982), an agreement which indemnifies a party for its own negligence must specifically include the term “negligence.” As the defendants contend, however, this specific argument was not presented to the trial court and is therefore waived on appeal. See, e.g., Bank One, Appleton, N.A. v. Reynolds, 176 Wis. 2d 218, 222, 500 N.W.2d 337, 339 (Ct. App. 1993).

We now turn to the second issue presented. [***17] Although we have found that the exculpatory clause serves as a bar to the Yaugers’ claim, Brenda nonetheless asserts that it should not run against her individually since she did not expressly acknowledge these terms, nor did she authorize her husband to execute a contract releasing these claims. In support of her argument, she draws an analogy to Arnold v. Shawano County Agri. Soc’y, 111 Wis. 2d 203, 214-15, 330 N.W.2d 773, 779 (1983), where the court held that a [*502] spouse’s claim for consortium rights is not defeated by a valid exculpatory contract running against the deceased.

In dismissing this claim the trial court distinguished Arnold, stating:

In this case the plaintiff Brenda Yauger did not sign the application, but the application was made on her behalf and for her [**841] benefit, which is not the factual situation in Arnold. And she is specifically identified and money is specifically paid for her membership, for her use, and the use of her daughter ….

Although we agree in substance with the trial court’s analysis, we feel it necessary to elaborate further. We add that Brenda’s claim is barred by the exculpatory clause because it is so intertwined [***18] with that of her husband, and thus it was reasonable for Hidden Valley to assume that Michael was acting on her behalf when he executed the agreement.

The Yaugers’ claim has three components: loss of consortium, Tara’s medical expenses and the cost of her funeral. See § 895.04(4), STATS. The right to pursue a claim for these losses accrues to Michael and Brenda as the “parents of the deceased.” See id. This is not a situation in which one parent’s recovery is limited or barred by his or her negligence. See § 895.04(7). This distinction recently was addressed in Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 561, 514 N.W.2d 399, 403 (1994), where the court noted: “the right to sue and recover damages under the wrongful death statute must be distinguished from the ownership and allocation of the recovery itself.”

Brenda alleges that she never authorized her husband to enter into this exculpatory clause (and bargain [*503] away her right to pursue a potential claim), nor was she aware of its effects. Nevertheless, she shared equally in the benefits that arose to her family, and the face of the application form would suggest that all [***19] named parties are bound by its terms.

Although there is little case law applying the principles of agency in transactions between married persons and third parties, Smart v. Estate of Ford, 23 Wis. 2d 60, 65-66, 126 N.W.2d 573, 576 (1964), summarized the Wisconsin rule that third parties may reasonably believe that one spouse had authority to act on behalf of the other. Here, we are dealing with the Yaugers’ joint interest in the companionship of their beloved daughter. Michael completed the season pass application on behalf of his whole family and paid the appropriate sum. Absent any evidence that Brenda informed Hidden Valley that she was not bound by this agreement, the Yaugers should both be held by the terms of the application.

By the Court.–Judgment affirmed.

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Have you read your health and life policy to see if your activities are excluded. This travel insurance policy excluded mountaineering and skiing

First this case defines mountaineering, legally! The court carefully picked its way through the language of the policy to keep the injured plaintiff in the lawsuit a little longer. That probably means the insurance company settled the case rather than spend more money fighting, but that is only speculation.

Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089

Date of the Decision: January 15, 2014

Plaintiff: Ryan M. Redmond

Defendant: Sirius International Insurance Corporation

Plaintiff Claims: breach of contract and insurance bad faith

Defendant Defenses: the contract

Holding: Cross motions for summary judgment denied, case headed for trial

The plaintiff in this case when ski mountaineering in Grand Teton National Park. Half way up Ellingwood Couloir, the plaintiff and a friend stopped climbing and started to ski down. Two other friends proceeded up the couloir. The plaintiff fell, tumbling down the mountain. He was eventually airlifted from the park.

The plaintiff had purchased a travel policy. The insurance company that issued the travel policy, relying upon the exclusions in the policy, denied coverage for the plaintiff’s injuries. The plaintiff and the defendant insurance company filed motions for summary judgment covering multiple issues, including a dismissal of the case due to the policy exclusions.

Summary of the case

The policy exclusions stated:

All charges, costs, expenses and/or claims (collectively “Charges”) incurred by the Insured Person and directly or indirectly relating to or arising from or in connection with any of the following acts …:

* * *

(11) Charges incurred for any surgery, Treatment or supplies relating to, arising from or in connection with, for, or as a result of:

* * *

(d) any Injury or Illness sustained while taking part in mountaineering activities where specialized climbing equipment, ropes or guides are normally or reasonably should have been used, Amateur Athletics, Professional Athletics, aviation (except when traveling solely as a passenger in a commercial aircraft), hang gliding and parachuting, snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body), racing of any kind including by horse, motor vehicle (of any type) or motorcycle, spelunking, and subaqua pursuits involving underwater breathing apparatus (except as otherwise expressly set forth in Section Q. Recreational Underwater Activities). Practice or training in preparation for any excluded activity which results in injury will be considered as activity while taking part in such activity; and/or

(e) any Illness or Injury sustained while participating in any sporting, recreational or ad-venture activity where such activity is undertaken against the advice or direction of any local authority or any qualified instructor or contrary to the rules, recommendations and procedures of a recognized governing body for the sport or activity….

Basically the policy attempted to exclude recreational activities except skiing at a ski area.

The court first looked at the requirements for either party to win a motion for summary judgment. Similar in most courts in most cases.

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A material fact is one that might affect the outcome of the case, and a nonmoving party’s dispute is “genuine” only if a reasonable finder of fact could find in the nonmoving party’s favor at trial. The court views the facts in the light most favorable to the non-moving party, and likewise it draws all inferences in the non-movant’s favor. The court may not weigh the evidence or make credibility determinations. Thus, the nonmoving party will defeat a motion for summary judgment if it is able to produce admissible evidence that, when viewed in the most favorable light, would be sufficient to enable the finder of fact to return a verdict in its favor.

The court then looked at the requirements on interpreting an insurance policy. Insurance policies are contracts and must meet all contract requirements. Insurance policies in many states also have to meet specific requirements and have different ways of interpreting some specific insurance issues. In Wisconsin policies are interpreted as a contract first.

“An insurance policy is a contract, and as such is subject to the same rules of construction as other contracts.” Because contract interpretation is primarily a question of law, it is a matter that is generally well-suited for summary judgment. “When interpreting an insurance contract courts must look at the contract as a whole.” In construing an insurance contract, the court should do “so as not to render any words, phrases, or terms ineffective or meaningless.” Terms should be given their plain and ordinary meaning. In determining the “plain and ordinary meaning” of a term, courts will frequently turn to dictionaries.

However, if a provision of an insurance contract is ambiguous, it is to be construed strictly against the insurer. An insurance contract is not ambiguous simply because parties each have their own interpretation of a provision. Rather, “[a]n insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.”

Construction against the author of a contract is a common occurrence in the law. The party that drafts the contract is the party that loses if the court is faced with a situation where the exact intention of the language is not clear. Instead of tossing a coin, the writer of the contract loses.

The court looked at the exclusion language above to determine if the activity of climbing up a couloir and skiing down is mountain climbing.

First the court determined that mountaineering did not encompass the action of skiing down the mountain. When in doubt in defining words courts use dictionaries.

The Oxford English Dictionary defines “mountaineering” as, “The action or sport of climbing mountains.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/239554.

Merriam-Webster similarly defines it as “the sport or technique of scaling mountains.” Merriam-Webster, (January 15, 2014), http://www.merriam-webster.com/dictionary/mountaineering.

The definition within the American Heritage Dictionary states, “The climbing of mountains, especially using special equipment and techniques on rock, ice, or snow.

Also called mountain climbing.” American Heritage Dictionary, (January 15, 2014), http://www.ahdictionary.com/word/search.html?q=mountaineering.

The definitions all defined mountaineering as climbing and climbing means going up. However, the court also found that:

Thus, if “mountaineering” is defined by reference to “climbing” and climbing can denote either ascent or descent, then necessarily, “mountaineering” must include both ascent and descent. The court finds this understanding of mountaineering to be the only logical definition. After all, in the context of mountaineering, the proverb “What goes up, must come down,” is generally literally true.

The next issue then if skiing down was not mountaineering and excluded, was the issue, whether the activity which injured the plaintiff violated the ski terms of the policy. The court then had to consider if skiing in a couloir in a national park is skiing out of bounds. The defendant argued that ski mountaineering was encompassed by the term mountaineering. However, the court did not agree. “The court also rejects the defendant’s contention that the mountaineering exclusion encompasses “ski mountaineering,” which the defendant characterizes as a subset of mountaineering.”

The plaintiff argued that ski mountaineering required the use of ropes and other specialized equipment. The court found that the term mountaineering did not encompass ski mountaineering.

Thank heavens for us; the court did not accept either of these definitions.

The next issue was whether or not the acts of the plaintiff fell within the exclusions in the policy concerning skiing. The court reviewed the policy and the skiing exclusion and defined the exclusion this way.

This provision, moving back and forth between coverage and exclusions, is far from a model of clarity. It first excludes coverage for injuries sustained while snow skiing but then immediately excludes from the exclusion (and thus covers) injuries sustained while “recreational downhill and/or cross country snow skiing,” and then adds a parenthetical to now exclude from the exclusion to the exclusion (and thus deny coverage for) injuries sustained while “skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body.” The net effect of this provision is that injuries sustained as a result of recreational snow skiing are covered provided the skiing was not unlawful, against the advice of certain entities, or “away from prepared and marked in-bound territories.”

(You always wondered what someone learns in law school. You learn to read policy exclusions and then interpret them as explained above. The court found the language in the policy: “This provision, moving back and forth between coverage and exclusions, is far from a model of clarity.”)

The plaintiff argued that he was skiing in an area allowed by the insurance policy because anywhere within Grand Teton National Park was allowed to be skied, and he did not leave the park boundary. Inbounds meaning in the National Park. The court then looked at other aspects of the policy to determine what was meant.

“Recreational” is not ambiguous. It is readily understood as, “An activity or pastime which is pursued for the pleasure or interest it provides.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/159954.

There is no evidence that Redmond was skiing for any purpose other than the pure pleasure or interest the sport provides, and thus the court concludes that Redmond’s skiing on the day of his injury was recreational.

Thus, competitive or commercial skiing likely would not be covered under the policy.

The net effect of the review was the court could not determine if the actions of the plaintiff were excluded by the policy. The definitions the court used and defined in making this determination do have value.

…Redmond [plaintiff] was skiing away from prepared and marked in-bound territories, this plainly encompasses more than simply skiing in an area where skiing is not barred. Thus, having concluded that “away from” means roughly “outside of,” restating this exclusion as a positive question, the issue before the court becomes, “Was Redmond skiing in a prepared and marked in-bound territory when he was injured?” Only if he was would the policy possibly afford coverage for his injures.

The court then looking at the overview of skiing could not determine what the terms in the skiing exclusion meant.

The court presumes that if a ski area is bordered on the sides by signs and ropes demarcating the boundaries of the permissible skiing area, it is likely “marked” within the scope of the policy. But is this the only kind of identification that will render an area “marked?” What if the area is depicted on a map that includes boundary lines indicating the recommended areas for skiing? If markings on a map are sufficient, who must prepare such a map to render the area marked? Must the map be prepared by the entity in charge of the area, e.g. the National Park Service, or would a map prepared by a person with special knowledge of the area suffice? Or must the markings even relate to the in-bound territories? Would a sign in the vicinity of the mountain stating “Ski at your own risk,” suffice as a marking? Perhaps there are many other plausible understandings of this term.

The court finally determined that the terms “prepared” and “marked” were not defined adequately in the policy. Therefore, the policy was ambiguous. The court could not grant the defendant’s motion for summary judgment. That issue was left for a jury to decide.

The case went on for multiple pages discussing all the motions filed by each side. This issue was the only one of importance.

So Now What?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created this exclusion in health insurance policies. The exclusion is legal, but up to an insurance company to enact and place its policies. Several attempts have been made since HIPAA was enacted to correct this issue; however, all have died in committee.

Simply put the court worked hard to determine a way the plaintiff would have insurance.  The simple term “ski area,” added to the definition of skiing would have made the purpose of the lawsuit irrelevant. Obviously, the ski area description was solely for skiing inbounds not in a park.

If you enjoy recreating in the outdoors, make sure that you have the insurance coverage you believe you are paying for. Read your policy or find someone who can read it for you. An insurance policy is more than something to read when you can’t get to sleep at night.

What do you think? Leave a comment.

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Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089

Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089

Ryan M. Redmond, Plaintiff, v. Sirius International Insurance Corporation, Defendant.

Case No. 12-CV-587

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

2014 U.S. Dist. LEXIS 5089

January 15, 2014, Decided

January 15, 2014, Filed

PRIOR HISTORY: Redmond v. Sirius Int’l Ins. Corp., 2012 U.S. Dist. LEXIS 110594 (E.D. Wis., Aug. 7, 2012)

CORE TERMS: skiing, bad faith claim, coverage, mountaineering, summary judgment, marked, choice of law, ski, territory, in-bound, mountain, insurer, dictionary, insurance contracts, insurance policies, recreational, insured, climbing, ambiguous, snow, forum selection clause, jury trial, deposition, moot, climb, descent, http, www, com, interest of justice

COUNSEL: [*1] For Ryan M Redmond, Plaintiff: Dean P Laing, Douglas P Dehler, LEAD ATTORNEYS, O’Neil Cannon Hollman DeJong & Laing SC, Milwaukee, WI.

For Sirius International Insurance Corporation, Defendant: Barry A Chasnoff, Mary M Pena, LEAD ATTORNEYS, Akin Gump Strauss Hauer & Feld LLP, San Antonio, TX; Jeffrey A Evans, von Briesen & Roper SC, Milwaukee, WI.

JUDGES: AARON E. GOODSTEIN, U.S. Magistrate Judge.

OPINION BY: AARON E. GOODSTEIN

OPINION

DECISION AND ORDER

I. PROCEDURAL HISTORY

Ryan M. Redmond (“Redmond”) was seriously injured while skiing at Grand Teton National Park on July 2, 2011. When his health insurer, Sirius International Insurance Corporation (“Sirius”), [*2] denied coverage for his injuries, Redmond filed the present action, initially in Waukesha County Circuit Court. Sirius removed the action to federal court on June 8, 2012 based upon the diversity of the parties. On June 14, 2012, Sirius filed its answer and a counterclaim along with a motion to transfer the case to the Southern District of Indiana. Redmond responded to the motion and also filed motions asking that the court strike the defendant’s answer and counterclaim and asking the court to require the defendant to post bond in accordance with Wisconsin law.

On August 7, 2012, the court denied the plaintiff’s motions. With respect to Sirius’ motion to transfer the action to the Southern District of Indiana, the court found that the record was insufficient to permit the court to resolve the motion and therefore held the motion in abeyance as the parties engaged in discovery. On March 20, 2013, the court denied without prejudice the motion to transfer.

On September 9, 2013, the parties filed a total of eight separate motions. (Docket Nos. 54, 56, 58, 60, 63, 66, 70, 75.) The plaintiff subsequently filed two additional motions. (Docket Nos. 84, 107.) Of these 10 motions, the court must [*3] first address the defendant’s renewed motion to transfer the case to Southern District of Indiana, (Docket No. 54), and thus decide whether this court or the Southern District of Indiana should resolve the 9 other motions.

II. MOTION TO TRANSFER

The relevant policy contains a forum selection clause providing that venue for any action related to the policy shall be in “the Circuit and/or Superior Courts of Marion County [Indiana] and in the United States District Court for the Southern District of Indiana, Indianapolis Division (assuming that federal jurisdiction is otherwise appropriate and lawful).” (Docket No. 7 at 3-4.) If the forum selection clause is valid, pursuant to 28 U.S.C. § 1404(a), the “court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer.” Atl. Marine Constr. Co. v. United States Dist. Court, 517 U.S. , , 187 L. Ed. 2d 487, 494, 134 S. Ct. 568 (2013).

Wisconsin law bars such forum selection clauses in insurance policies. Wis. Stat. § 631.83(3)(b). But Wisconsin’s prohibition applies to only “insurance policies and group certificates delivered or issued for delivery in this state, on property ordinarily [*4] located in this state, on persons residing in this state when the policy or group certificate is issued, or on business operations in this state.” Wis. Stat. § 631.01(1). The defendant’s argument against the application of this provision is limited to its view that Redmond was not “residing in” Wisconsin at the time the policy was issued. Sirius does not present, and therefore the court shall not consider any other arguments that may be raised as to why this statutory proscription may be inapplicable to the present dispute.

As the court discussed at length in its prior order, Redmond v. Sirius Int’l Ins. Corp., 2012 U.S. Dist. LEXIS 110594 (E.D. Wis. Aug. 7, 2012), there is a dispute as to whether Redmond was “residing in” Wisconsin when the policy was issued. The court concluded that “residing in” “include[s] [*5] not only those who dwell within the state for a long-term or extended period of time, but also, to the extent that the categories are not redundant, those who have Wisconsin as their domicile, i.e. ‘an individual’s true, fixed, and permanent home where the individual intends to remain permanently and indefinitely and to which, whenever absent, the individual intends to return.'” 2012 U.S. Dist. LEXIS 110594 at *21 (quoting Wis. Stat. §§ 71.01(1n), 71.22(1t)).

Redmond traveled frequently. In fact, the insurance policy that is at issue here was designed specifically to serve the needs of such travelers. He lived in his mother’s home in Delafield, Wisconsin until November 5, 2006 when he left for about six months of missionary work in Peru. He returned to Wisconsin and lived in Wisconsin until August 29, 2010, aside from a total of 30 days of missionary work in Peru and a month working on a Canadian dude ranch.

On August 25, 2010, from his home in Wisconsin, Redmond electronically submitted an application for renewal of his health insurance for the period of October 20, 2010 to October 20, 2011. (Docket No. 88, ¶8.) In doing so, he requested that the policy documents be sent to him in Vermont where he would be attending [*6] school. The application was approved the following day and the declaration and certificate were issued. (Docket No. 88, ¶9.) On August 29, 2010, Redmond left Wisconsin to travel to Vermont where he leased an apartment and attended school from August 30, 2010 through May 20, 2011, returning to Wisconsin in the interim for holidays. (Docket No. 88, ¶¶11-12.) Following May 20, 2011, Redmond returned to Wisconsin. (Docket No. 88, ¶13.)

The court finds that notwithstanding his travels and attendance at school in Vermont, Wisconsin remained Redmond’s domicile, and thus he was “residing in” Wisconsin when the policy was issued. This conclusion is further supported by the facts that Redmond filed taxes, had bank accounts, voted, and registered a vehicle in only Wisconsin. (Docket No. 88, ¶¶16-19.) Consequently, the policy’s forum selection clause is unenforceable under Wis. Stat. § 631.83(3)(b).

Having concluded that the forum selection clause is invalid, the court must turn to Sirius’ alternative argument and consider whether, after balancing all relevant factors, transfer to the Southern District of Indiana remains appropriate pursuant to 28 U.S.C. § 1404(a). “For the convenience of parties [*7] and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).

Section 1404 (a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice. Thus, as the Court recognized in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 27, 80 S. Ct. 1470, 4 L. Ed. 2d 1540, [(1960)], the purpose of the section is to prevent the waste “of time, energy and money” and “to protect litigants, witnesses and the public against unnecessary inconvenience and expense….”

Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) (footnotes omitted). There is no dispute that this action could have been filed in the Southern District of Indiana. Thus, the court’s analysis is limited to consideration of the convenience of the parties and witnesses and the interest of justice. The movant “has the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986).

“With respect to the convenience evaluation, [*8] courts generally consider the availability of and access to witnesses, and each party’s access to and distance from resources in each forum. Other related factors include the location of material events and the relative ease of access to sources of proof.” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (citations omitted). “The ‘interest of justice’ is a separate element of the transfer analysis that relates to the efficient administration of the court system.” Id.

For this element, courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums; each court’s relative familiarity with the relevant law; the respective desirability of resolving controversies in each locale; and the relationship of each community to the controversy. The interest of justice may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result.

Id. (citations omitted).

Neither forum is especially more convenient for the parties or witnesses. Of the witnesses identified by the parties as likely to testify at trial, four live [*9] in Wyoming, one lives in Colorado, two (or three using the defendant’s count of potential witnesses) live in Indiana, one (the plaintiff) lives in Wisconsin (not Vermont as the defendant states), and one lives in Florida but maintains an apartment and office in Wisconsin. (Docket Nos. 87 at 15; 55 at 10.) The plaintiff’s attorneys have offices in Milwaukee, Wisconsin; the defendant’s attorneys are located in San Antonio, Texas, and are assisted by local counsel. Thus, a number of people are going to have to travel for trial. When traveling from Wyoming, Colorado, or Texas, it makes little difference whether the destination is Indianapolis or Milwaukee. The convenience of a trial in Indianapolis for the witnesses in Indiana would be countered by the inconvenience to the plaintiff, his attorneys, as well as his expert.

The defendant also notes that evidence, such as the plaintiff’s insurance documents, is more likely to be found at offices in Indiana. (Docket No. 55 at 10.) The court finds that in the usual case, the location of documentary evidence is generally an inconsequential consideration. Routine discovery in any case will involve digitizing documents and thus whether parties are [*10] separated by city blocks or time zones, the means and ease of exchange will be the same. The court has no reason to believe this would not be the case here. And after all, discovery is complete so this truly is a non-issue.

The court also recognizes that, although it is unenforceable under Wisconsin law, the fact that the parties agreed to a forum selection may be given some weight in the analysis under § 1404(a). See IFC Credit Corp. v. Aliano Bros. Gen. Contrs., Inc., 437 F.3d 606, 608 (7th Cir. 2006) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988). However, the fact of the parties’ agreement is counterbalanced by Wisconsin’s strong public policy against forum selection clauses in insurance contracts; thus, the interests of justice lead to the conclusion that this fact merits negligible weight. Cf. id.

With further respect to the interests of justice factor, the defendant points to the fact that the policy states, “Indiana law shall govern all rights and claims raised under this Certificate of Insurance.” (Docket No. 55-1 at ¶6.) Whether Indiana law actually governs this case is the subject of a separate motion. (Docket No. 58.) As discussed below, the court finds [*11] that Indiana law does govern the interpretation of the present contract. Nonetheless, the court does not find that this factor is sufficient to overcome the presumption of preference for the plaintiff’s chosen forum. Although a federal court in Indiana will naturally be more familiar with Indiana law, applying laws from other states is a routine task for federal courts. The defendant has not identified any reason for the court to believe that the legal questions in this action will involve especially novel or complex interpretations of Indiana law such that there is a strong reason to have this matter overseen by a court with more intimate familiarity with Indiana law.

Therefore, having concluded that the forum selection clause is not enforceable and consideration of all the § 1404(a) factors fails to show that the Southern District of Indiana is clearly more convenient and/or favored as a result of a consideration of the interests of justice, the defendant’s motion to transfer this action, (Docket No. 54), shall be denied.

III. CHOICE OF LAW

The relevant insurance policy states, “Indiana law shall govern all rights and claims raised under this Certificate of Insurance.” (Docket No. 55-1 [*12] at ¶6.) Relying upon this provision, the defendant asks the court to conclude that Indiana law applies to the claims raised in this case. (Docket Nos. 58, 59.) The plaintiff responds that Wisconsin law should apply because: (1) the defendant waived its opportunity to make a choice of law argument; (2) the choice of law provision is unconscionable; (3) the choice of law provision is contrary to Wisconsin public policy; (4) the choice of law provision would not apply to the plaintiff’s bad faith claim; (5) a common law choice of law analysis indicates that Wisconsin law should govern. (Docket No. 86.) The defendant replies that a common law choice of law analysis would actually favor Indiana, but in any event, the choice of law provision remains enforceable, is applicable to all the plaintiff’s claims, and the defendant did not waive the choice of law argument.

The court finds that Indiana law governs the present action. The court does not find that the defendant waived the choice of law argument. Choice of substantive law was not relevant to the court’s prior decisions and concluding now that Indiana law applies does not require the court to reassess any prior conclusion.

Nor does the [*13] court find the relevant provision unconscionable. Even accepting the plaintiff’s arguments that a reasonable person would not read the entire policy to recognize that it contained this choice of law provision, much less recognize its implications if he did, the court does not find the provision satisfies the high standard of unconscionability. The plaintiff does not point out what is supposedly so unfavorable about Indiana law that it would make it extremely unfair or oppressive to apply it in this case. If a reasonable person in the plaintiff’s position had been fully aware of the presence and consequences of the choice of law clause, the court has no reason to believe he would not have still agreed to the insurance policy he was offered.

The court finds the plaintiff’s argument that the choice of law provision violates Wisconsin public policy, (Docket No. 86 at 7-8), to be novel but misguided. In the plaintiff’s view, only Wisconsin law could ever govern an insurance dispute involving a Wisconsin resident because Wisconsin’s laws embody the public policy of the state and an insurance contract cannot ever be interpreted in a manner that offends the public policy of the state of Wisconsin. [*14] This argument is founded upon an overly-expansive reading of a quote of Couch on Insurance contained in Appleton Papers, Inc. v. Home Indem. Co., 2000 WI App 104, ¶44, 235 Wis. 2d 39, 612 N.W.2d 760:

A provision that a contract of insurance shall be governed by the law of a given state is void where such an express provision violates a statute of the state of the contract or would, if given force, evade statutory provisions declaring a rule of public policy with reference to contracts made within the jurisdiction, or where the contract stipulation would violate the interests and public policy of the state, since these cannot be changed by the contract of the parties.

What the Wisconsin Court of Appeals was actually saying in this quoted passage is that Wisconsin will not enforce a provision of an insurance contract that offends Wisconsin law simply because the contract contained a choice of law provision stating that the law of another state shall govern. It is for this reason that, notwithstanding the presence of the forum selection clause, it is appropriate to apply Wisconsin law to conclude that the forum selection clause was invalid. The plaintiff does not point to any Wisconsin law or public policy similarly barring [*15] choice of law provisions in insurance contracts. The court rejects the plaintiff’s argument that the court of appeals in Appleton Papers effectively found any choice of law provision unlawful.

Thus, the court turns to the plaintiff’s remaining argument that Wisconsin law would still apply to his bad faith claim. (Docket No. 86 at 8-9.) In support of this argument, the plaintiff begins with the terms of the choice of law provision: “Indiana law shall govern all rights and claims raised under this Certificate of Insurance,” (Docket No. 55-1 at ¶6). Redmond reads this provision as being limited to claims for insurance coverage. (Docket No. 86 at 8.) In Redmond’s view, a claim of bad faith is not “raised under” the policy but rather is a wholly distinct claim.

The court disagrees. Although bad faith is a tort and is distinct from breach of contract, in this case, it is the existence of the contract that creates the relationship necessary for a bad faith claim. Anderson v. Cont’l Ins. Co., 85 Wis. 2d 675, 687, 271 N.W.2d 368, 374 (1978) (the court looks to Wisconsin law here because that is the basis for the plaintiff’s argument). If there was no contract, there could be no claim of bad faith. [*16] Any bad faith claim will depend upon the scope and provisions of the contract. Because a bad faith claim is inextricably linked to the contract, in the court’s view, it is appropriately regarded as a “claim raised under this Certificate of Insurance.”

Accordingly, the court concludes that the choice of law provision contained within the policy is enforceable and applies to all of the plaintiff’s claims. Therefore, the defendant’s motion, (Docket No. 58), shall be granted, and Indiana substantive law shall govern this matter. Consequently, the court shall not consider arguments presented by the plaintiff that are founded solely in Wisconsin law or otherwise unsupported by reference to Indiana law.

IV. MOTIONS FOR SUMMARY JUDGMENT

Having concluded that Indiana law applies and this court must decide the present motions, the court turns to the parties’ motions for summary judgment. Sirius seeks summary judgment in its favor on both Redmond’s breach of contract, (Docket No. 70), and bad faith, (Docket No. 75), claims, as well as its cross-claim for breach of contract, (Docket No. 70), and with respect to the issue of future medical expenses, (Docket No. 66). Redmond seeks summary judgment [*17] on the question of coverage. (Docket No. 63.) The issues raised in all of the motions are largely inter-related and therefore the court shall address them together. At the core of the present dispute is the question of whether the relevant insurance policy afforded coverage for the injuries Redmond suffered and thus the court begins there.

A. Facts

On July 2, 2011, 32-year-old Redmond joined three acquaintances on a trip to ski the Ellingwood Couloir, located in Grand Teton National Park in Wyoming. (Docket No. 83, ¶1.) All were experienced skiers and Redmond considered himself an “expert,” having skied since age two and having skied competitively in high school. (Docket No. 83, ¶¶7-8.) Setting out at 1:00 or 2:00 AM, the group hiked up the mountain using crampons and ice axes to assist their assent. (Docket No. 83, ¶17-18.) Photographs of the group’s ascent have been included in the record. (See Docket No. 68-5.) By about 10:00 AM, the group was about two-thirds of the way up the Ellingwood Couloir when they stopped to rest. (Docket No. 83, ¶19.) Two of the group, including Redmond, rested about 30 minutes, removed their climbing gear, and prepared for their descent; two others continued [*18] climbing, intending to reach the top of the couloir before skiing down. (Docket No. 83, ¶¶25-26.) Redmond was first to ski down the mountain but after skiing only a short distance, he lost his balance and fell. (Docket No. 83, ¶28.) When he ceased tumbling down the mountain, he remained motionless, unconscious, and unresponsive. (Docket No. 83, ¶29.) He was eventually airlifted from the park for medical treatment. (Docket No. 83, ¶29.)

The relevant insurance policy that provided coverage for Redmond for the period of October 20, 2010 to October 20, 2011, contains the following exclusions:

All charges, costs, expenses and/or claims (collectively “Charges”) incurred by the Insured Person and directly or indirectly relating to or arising from or in connection with any of the following acts …:

* * *

(11) Charges incurred for any surgery, Treatment or supplies relating to, arising from or in connection with, for, or as a result of:

* * *

(d) any Injury or Illness sustained while taking part in mountaineering activities where specialized climbing equipment, ropes or guides are normally or reasonably should have been used, Amateur Athletics, Professional Athletics, aviation (except when traveling [*19] solely as a passenger in a commercial aircraft), hang gliding and parachuting, snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body), racing of any kind including by horse, motor vehicle (of any type) or motorcycle, spelunking, and subaqua pursuits involving underwater breathing apparatus (except as otherwise expressly set forth in Section Q. Recreational Underwater Activities). Practice or training in preparation for any excluded activity which results in injury will be considered as activity while taking part in such activity; and/or

(e) any Illness or Injury sustained while participating in any sporting, recreational or adventure activity where such activity is undertaken against the advice or direction of any local authority or any qualified instructor or contrary to the rules, recommendations and procedures of a recognized governing body for the sport or activity….

(Docket No. 83, ¶33 (emphasis added).) Relying upon section (d) quoted above, [*20] Sirius denied Redmond’s claim. (Docket No. 83, ¶¶36, 38.)

B. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A material fact is one that might affect the outcome of the case, and a nonmoving party’s dispute is “genuine” only if a reasonable finder of fact could find in the nonmoving party’s favor at trial. Anderson, 477 U.S. at 248-49. The court views the facts in the light most favorable to the non-moving party, and likewise it draws all inferences in the non-movant’s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). The court may not weigh the evidence or make credibility determinations. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Thus, the nonmoving party will defeat a motion for summary judgment if it is able to produce admissible evidence that, when viewed in the most favorable light, would be sufficient to enable the finder of fact to return a verdict in its favor. Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012).

C. [*21] Analysis

“An insurance policy is a contract, and as such is subject to the same rules of construction as other contracts.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005) (citing Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1054 (Ind. 2001)). Because contract interpretation is primarily a question of law, it is a matter that is generally well-suited for summary judgment. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1174 (Ind. Ct. App. 2012) (citing Mahan v. Am. Std. Ins. Co., 862 N.E.2d 669, 676 (Ind. Ct. App. 2007)). “When interpreting an insurance contract courts must look at the contract as a whole.” Dunn, 836 N.E.2d at 252 (citing Meridian Mut. Ins. Co. v. Richie, 540 N.E.2d 27, 29 (Ind. 1989)). In construing an insurance contract, the court should do “so as not to render any words, phrases, or terms ineffective or meaningless.” FLM, 973 N.E.2d at 1174 (citing Mahan, 862 N.E.2d at 676). Terms should be given their plain and ordinary meaning. Id. (citing Mahan, 862 N.E.2d at 676). In determining the “plain and ordinary meaning” of a term, courts will frequently turn to dictionaries. See, e.g., Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 247 (Ind. 2005); [*22] State Farm Mut. Auto. Ins. Co. v. D’Angelo, 875 N.E.2d 789, 797-98 (Ind. Ct. App. 2007).

However, if a provision of an insurance contract is ambiguous, it is to be construed strictly against the insurer. FLM, 973 N.E.2d at 1174 (quoting Lake States Ins. Co. v. Tech Tools, Inc., 743 N.E.2d 314, 318 (Ind. Ct. App. 2001)). An insurance contract is not ambiguous simply because parties each have their own interpretation of a provision. Id. (citing Mahan, 862 N.E.2d at 676). Rather, “[a]n insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.” Id. (quoting Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 997 (Ind. Ct. App. 1999)).

1. Mountaineering Exclusion

In its motion for summary judgment, the defendant begins with the contention that the plaintiff’s injuries directly or indirectly related to or arose from or were in connection with mountaineering activities “where specialized climbing equipment, ropes or guides are normally or reasonably should have been used.” Mountaineering is not defined in the policy.

There is no dispute between the parties that when he was ascending the mountain, [*23] Redmond was mountaineering. But Redmond was not injured on his ascent, and the parties disagree as to whether his descent on skis constituted mountaineering.

The Oxford English Dictionary defines “mountaineering” as, “The action or sport of climbing mountains.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/239554. Merriam-Webster similarly defines it as “the sport or technique of scaling mountains.” Merriam-Webster, (January 15, 2014), http://www.merriam-webster.com/dictionary/mountaineering. The definition within the American Heritage Dictionary states, “The climbing of mountains, especially using special equipment and techniques on rock, ice, or snow. Also called mountain climbing.” American Heritage Dictionary, (January 15, 2014), http://www.ahdictionary.com/word/search.html?q=mountaineering.

If a person uses the word “climb” or “climbing” in common conversation, the connotation will generally be of an action involving ascent, e.g. climb a ladder, climbing stairs, or climb a tree. This understanding is reflected in the Oxford English Dictionary’s first definition of “climb,” which states, “To raise oneself by grasping or clinging, or by the aid of hands [*24] and feet; ‘to mount by means of some hold or footing’ (Johnson); to creep up; to ascend, come, or go up, a perpendicular or steep place. Often with up.” Oxford English Dictionary, (December 2, 2013), http://www.oed.com/view/Entry/34342 (emphasis in original).

But as any parent knows from having to frequently call after a rambunctious child, the word “climb” is often used alongside “down,” to denote descent, as in, “Climb down from there before you get hurt!” The Oxford English Dictionary recognizes this usage of “climb” as its second definition of the word “climb” stating, “to descend by the same means.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/34342.

Thus, if “mountaineering” is defined by reference to “climbing” and climbing can denote either ascent or descent, then necessarily, “mountaineering” must include both ascent and descent. The court finds this understanding of mountaineering to be the only logical definition. After all, in the context of mountaineering, the proverb “What goes up, must come down,” is generally literally true.

But a person is not necessarily “mountaineering” when he is descending a mountain simply because he ascended through [*25] mountaineering. A person who has helicopter waiting for him at a peak or who chooses to parasail off a mountain could not be appropriately regarding as “mountaineering” on his descent, notwithstanding the means of his ascent. Rather, as the Oxford English Dictionary notes in its second definition of “climb,” when used in the context of descent, the action must be “by the same means.” The court understands the “same means” to be referring to the means stated in the first definition of “climb,” i.e. “grasping or clinging, or by the aid of hands and feet.” Thus, whether ascending or descending a mountain by means of “grasping or clinging, or by the aid of hands and feet,” the person is “mountaineering.”

Here, Redmond generally hiked and climbed up and attempted to ski down. Obviously, skiing involves “the aid of hands and feet” but so do countless other obviously distinct activities. Common sense and common usage would not equate skiing with mountaineering; the actions are distinct in both connotation and denotation. Redmond engaged in mountaineering in order to go skiing but that predicate or the fact that the skiing occurred on a mountain (as skiing obviously often will) did not transform [*26] his skiing into mountaineering.

Nor does the court find persuasive the defendant’s argument that the policy’s expansive language barring coverage for injuries “arising from or in connection with, for, or as a result of … mountaineering” operates to bar coverage. Obviously, this provision serves a valuable purpose. Without it, perhaps a person who fell while mountaineering could argue that the mountaineering exclusion should not bar coverage because he was injured when he fell, not when he was mountaineering, which, by definition, would not include an uncontrolled fall. But the defendant’s argument stretches this provision too far. In the view of the defendant, because the causal chain the resulted in Redmond’s injury included a mountaineering link, coverage must be barred. The court disagrees.

The court also rejects the defendant’s contention that the mountaineering exclusion encompasses “ski mountaineering,” which the defendant characterizes as a subset of mountaineering. The plaintiff contends that ski mountaineering requires ropes and other specialized equipment that he was not using on the descent, (Docket No. 64 at 23-24), but even accepting for present discussion that Redmond’s [*27] acts fell within a broad definition of “ski mountaineering,” the court finds that the mountaineering exclusion does not encompass the distinct activity of ski mountaineering. In describing the mountaineering exclusion, the policy states that mountaineering involves activities “where specialized climbing equipment, ropes or guides are normally or reasonably should have been used.” Here, Redmond’s downhill skiing would not have called for specialized climbing equipment, ropes, or guides, and thus, even if it came within a broad general definition of “ski mountaineering,” the activity would not come within the policy’s description of “mountaineering.”

Therefore, the court concludes that the mountaineering exclusion does not apply in this case. Thus, the court turns to whether any of the policy’s skiing exclusions apply.

2. Skiing Exclusions

In the portion of the insurance policy listing its exclusions, it also states:

“any Injury or Illness sustained while taking part in … snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; [*28] and/or against the advice of the local ski school or local authoritative body)….”

This provision, moving back and forth between coverage and exclusions, is far from a model of clarity. It first excludes coverage for injuries sustained while snow skiing but then immediately excludes from the exclusion (and thus covers) injuries sustained while “recreational downhill and/or cross country snow skiing,” and then adds a parenthetical to now exclude from the exclusion to the exclusion (and thus deny coverage for) injuries sustained while “skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body.” The net effect of this provision is that injuries sustained as a result of recreational snow skiing are covered provided the skiing was not unlawful, against the advice of certain entities, or “away from prepared and marked in-bound territories.”

The defendant argues that the plaintiff’s skiing was not “recreational” and points to a case where a court found that a life insurance policy did not provide coverage for an insured who was killed in an avalanche while heli-skiing [*29] (traveling via helicopter to a remote location on a mountain and then skiing down the mountain) because, although the insured listed skiing as one of his “recreational activities” he did not disclose that he engaged in backcountry heli-skiing. (Docket No. 81 at 8-12 (discussing W. Coast Life Ins. Co. v. Hoar, 505 F. Supp. 2d 734 (D. Colo. 2007)).) However, Hoar is distinguishable in that the issue before that court was not whether a policy exclusion applied but rather whether the insurer had adequate notice of the risk it was undertaking when it relied upon his application to issue the policy. Moreover, the court’s conclusion that the insurer was not adequately informed of its risk was not based solely upon the fact that the insured identified simply skiing, as opposed to heli-skiing, as a recreational activity, but also the fact that the insured did not disclose heli-skiing when asked if he engaged in “any hazardous activities.” Id. at 744-49.

“Recreational” is not ambiguous. It is readily understood as, “An activity or pastime which is pursued for the pleasure or interest it provides.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/159954. Thus, competitive [*30] or commercial skiing likely would not be covered under the policy. There is no evidence that Redmond was skiing for any purpose other than the pure pleasure or interest the sport provides, and thus the court concludes that Redmond’s skiing on the day of his injury was recreational.

Nor is there reason to conclude that his skiing was unlawful or against the advice of any relevant entity. The next question is whether he was skiing “away from prepared and marked in-bound territories” when he was injured.

In Redmond’s view, this phrase, when read alongside the other exclusions, means simply that there is no coverage if he is skiing in an area where he has been told not to ski. (Docket No. 64 at 27.) Thus, the exclusion would not apply here because he was skiing in an area where skiing was permitted; in effect, because skiing was permitted anywhere within Grand Teton National Park, the whole park was a prepared and in-bound territory. (Docket No. 64 at 27.)

Moreover, the term “away from” is ambiguous in the view of the plaintiff. It may be interpreted strictly to suggest the skier’s direction. Thus, there would be no coverage if a skier started on a marked and prepared in-bound area but then [*31] left that area. Or, perhaps, there might be coverage for out-of-bounds skiing provided the skier’s path, at some point, would intersect a marked and prepared in-bound territory and thus he was going towards, rather than away from, the in-bound territory. Therefore, a skier taking a shortcut through an out-of-bounds area would still be covered because he was going towards in-bound territory. Alternatively “away from” might be much broader, meaning generally, “outside,” as in how one might say she is “away from home.”

The court does not find the phrase “away from” to be ambiguous. Simply because a term has more than one denotation does not make it ambiguous; otherwise, the majority of words would probably be ambiguous. The differing understandings must also be reasonable given the context before the court will find a term ambiguous. The latter understanding, i.e. that “away from” means, roughly, “outside,” is the only reasonable understanding of the term given the context in which it is used. There may be some arguable ambiguity as to how far from the prepared and in-bound territory a person must be to be “away from” such territory, e.g. whether the term should be read like the NFL rulebook [*32] where one foot on the line is out of bounds or if there might be a sort of “bubble” around a covered territory so that coverage does not necessarily end at a strict boundary line, see York v. Sterling Ins. Co., 114 A.D.2d 665, 666-67, 494 N.Y.S.2d 243 (N.Y. App. Div. 3d Dep’t 1985) (holding that policy provision excluding coverage for injuries “away from” the insured’s property did not bar coverage for injuries sustained when a person riding a dirt bike on insured’s property lost control, traveled over the insured’s property line, and was injured). The follow-up question as to precisely how far one must be to be “away from” is not an issue presently before this court, although it may be relevant for trial. Thus, the court turns its focus to what is meant by “prepared and marked in-bound territories.”

The court rejects the plaintiff’s contention that the court must lump all the exclusions together and conclude that they mean simply that there is coverage so long as he was not skiing in an area where skiing was not banned. Such an interpretation offends the maxim of contract interpretation that, to the extent possible, every term and provision must be given meaning. In saying that there is no coverage [*33] if Redmond was skiing away from prepared and marked in-bound territories, this plainly encompasses more than simply skiing in an area where skiing is not barred. Thus, having concluded that “away from” means roughly “outside of,” restating this exclusion as a positive question, the issue before the court becomes, “Was Redmond skiing in a prepared and marked in-bound territory when he was injured?” Only if he was would the policy possibly afford coverage for his injures.

The plaintiff’s focus upon “in-bound” overlooks two other essential components to the exclusion–“prepared” and “marked.” The plaintiff refers to these terms in only a single inconsequential footnote, (Docket No. 64 at 31, n. 14).) If the plaintiff does not regard his argument on this point worthy of inclusion of the text of his brief, the court hardly regards it as worthy of much consideration; in fact, the court previously expressed its disapproval of the plaintiff’s efforts to raise arguments in footnotes, (Docket No. 80 at 4).

The court agrees with the defendant that “prepared” and “marked” are words of ordinary use. However, this fact does not necessarily mean that the terms are unambiguous as used in the policy. [*34] The only argument offered by either party that approaches a definition of the term “prepared” is the defendant’s suggestion that it means “groomed.” (Docket Nos. 71 at 23; 103 at 3, 9.) As for “marked” there is only the defendant’s footnote where it notes that Redmond testified he did not observe ropes, signs, fences, or other defined physical boundaries on the mountain that day. (Docket No. 71 at 21-22, fn.78.)

The court finds that both “prepared” and “marked” are subject to different interpretations. Again, simply because there are differing interpretations does not mean that the terms are ambiguous or that the policy affords coverage. Rather, for the term to be ambiguous, the differing interpretations must both be reasonable such that “intelligent persons would honestly differ as to its meaning.” Stevenson by Freeman v. Hamilton Mut. Ins. Co., 672 N.E.2d 467, 471 (Ind. Ct. App. 1996) (citing Harden v. Monroe Guaranty Ins. Co., 626 N.E.2d 814, 817 (Ind. Ct. App. 1993)). There is coverage only if one of those reasonable understandings is consistent with coverage. Thus, the court looks to the various meanings of these terms.

While “marked” is readily understood as having some sort of [*35] visible identification, see Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/114174, what is unclear is what sort of mark must be utilized or what these marks must indicate. The court presumes that if a ski area is bordered on the sides by signs and ropes demarcating the boundaries of the permissible skiing area, it is likely “marked” within the scope of the policy. But is this the only kind of identification that will render an area “marked?” What if the area is depicted on a map that includes boundary lines indicating the recommended areas for skiing? If markings on a map are sufficient, who must prepare such a map to render the area marked? Must the map be prepared by the entity in charge of the area, e.g. the National Park Service, or would a map prepared by a person with special knowledge of the area suffice? Or must the markings even relate to the in-bound territories? Would a sign in the vicinity of the mountain stating “Ski at your own risk,” suffice as a marking? Perhaps there are many other plausible understandings of this term.

As for “prepared,” again this term has a readily understandable common meaning, e.g. “To bring into a suitable condition [*36] for some future action or purpose; to make ready in advance; to fit out, equip.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/150447. This definition is exceptionally broad and thus its application to the context of skiing is unclear. Even the defendant’s own expert testified that he was not familiar with what this might mean in the context of skiing. (Docket No. 68-15 at 32.)

If ground has snow on it, to many persons, it is “prepared” for skiing in that it has been brought into a suitable condition for skiing, and thus the policy may be simply excluding coverage when persons attempt to ski on surfaces not suitable for skiing. Or must there be some sort of human intervention? (See Docket No. 68-12 at 12.) If so, what sort of intervention? In the context of backcountry skiing, would inspection for or the mitigation of avalanche dangers be adequate preparation of the territory? If so, who must do this? Or must there be, as the defendant seems to suggest, formal grooming of the area, using, for example, a snow grooming machine? If the latter definition is appropriate, then would there be coverage under the policy if an insured was making a run after a fresh [*37] snowfall, or must he wait for the snow grooming machine to make a pass over the slopes?

The court finds that neither party has adequately articulated, much less supported, an appropriate conclusive meaning for these terms. While the defendant’s understanding of the terms “prepared” and “marked” is, as discussed below in conjunction with the plaintiff’s bad faith claim, reasonable, this understanding is not necessarily the only reasonable understanding. Therefore, because the court is not satisfied that the terms are unambiguous and support the conclusion that there is no coverage under the policy, the court cannot grant the defendant’s motion for summary judgment. However, nor can the court grant the plaintiff’s motion for summary judgment because the plaintiff has not adequately demonstrated that the terms are, in fact, ambiguous and/or support a finding of coverage. The plaintiff largely asks the court to read the terms out of the policy rather than presenting an alternative reasonable understanding of these terms that is consistent with coverage. Although the court offers here hypothetical interpretations of these terms to demonstrate how they terms are not necessarily un-ambiguous, [*38] absent the defendant’s opportunity to respond to these interpretations, the court is not prepared to conclude that any of these proffered interpretations is reasonable. And in any event, even if reasonable, the court could not conclude that the proffered interpretation would be consistent with coverage because the plaintiff has not presented any such factual support to the court.

Consequently, neither party has succeeded in establishing that summary judgment is warranted on their respective motions relating to coverage. Because the understanding of “in-bound” appears to be at least partially dependent upon the definitions of both “prepared” and “marked,” the court finds itself similarly unable to fix a definition of this term at this time. Therefore, the parties’ motions for summary judgment regarding coverage, (Docket Nos. 63, 70), shall be denied.

3. Future Medical Expenses

Based upon its reading of the plaintiff’s complaint, the defendant understood that the plaintiff was seeking payment for medical expenses related to the accident but not incurred prior to the time the policy terminated. Thus, the defendant filed a motion seeking to foreclose this perceived request for damages. (Docket [*39] No. 66.) In response, the plaintiff states that he is seeking coverage only for medical expenses incurred between the date of the accident, July 2, 2011, and the date his coverage expired, October 19, 2012. The reference in the complaint to “costs of the medical care he will continue to receive in the future,” (Docket No. 1-1 at ¶40), was not a demand for coverage beyond the policy period but rather was necessitated by the fact that the complaint was filed within the policy period. In reply, the defendant asks the court to strike the pertinent portion of the complaint and declare that future medical expenses are not available to the plaintiff.

The court finds that the defendant’s motion, (Docket No. 66), is moot and therefore shall be denied as such. Further, the court finds no reason to strike any portion of the plaintiff’s complaint. The parties agree that the plaintiff is not entitled to payment for medical expenses incurred outside the policy period and the court does not read the complaint as seeking such damages. Thus, there is no controversy on this point that requires action by this court.

4. Bad Faith

It is well-established that insurers have a duty to deal in good faith with [*40] their insureds. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005) (citing Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 40 (Ind. 2002). “As a general proposition, ‘[a] finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will.'” Magwerks, 829 N.E.2d 968, 977 (Ind. 2005) (quoting Colley v. Indiana Farmers Mut. Ins. Group, 691 N.E.2d 1259, 1261 (Ind. Ct. App. 1998)). This may be proven if the plaintiff can establish by clear and convincing evidence “that the insurer had knowledge that there was no legitimate basis for denying liability.” Id. at 976 (quoting Freidline, 774 N.E.2d at 40). “Poor judgment or negligence do not amount to bad faith.” Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 714 (Ind. Ct. App. 2007) (quoting State Farm Mut. Auto Ins. Co. v. Gutierrez, 844 N.E.2d 572, 580 (Ind. Ct. App. 2006). Nor is the lack of a diligent investigation sufficient to support a finding of bad faith. Id. (quoting Gutierrez, 844 N.E.2d at 580). Thus, bad faith is not synonymous with a breach of contract. Even if a denial of coverage was improper, it was not necessarily done in bad faith. Id. [*41] (quoting Erie Ins. Co. v. Hickman, 622 N.E.2d 515 (Ind. 1993)).

Redmond’s claim of bad faith is two-pronged. The first prong is Sirius’ conduct before the suit was filed; the second is Sirius’ conduct in defending this suit and pursuing a counterclaim against Redmond.

With respect to Sirius’ pre-litigation conduct, Redmond contends that Sirius acted in bad faith when it failed to conduct an adequate investigation into his claim and denied his claim. Sirius contends that its investigation was appropriate and its decision reasonable. In support, it points primarily to its “claim log,” which it provided to the court, (Docket No. 73-24). However, absent appropriate foundation to establish that this document is a business record under Fed. R. Evid. 803(6), this document is inadmissible hearsay. The defendant fails to support this document by an affidavit or declaration, nor has the defendant directed the court to any relevant deposition testimony that could provide the necessary foundation.

The defendant also relies upon the deposition testimony of Tammie Peters (“Peters”), the person ultimately responsible for denying Redmond’s claim. However, the defendant has provided the court with only [*42] nine pages of her 154 page deposition (three of the provided pages comprise the cover and certification pages), and not always the pages relied upon by the defendant, (see, e.g., Docket No. 73 at ¶130 (citing “Ex. W, Peters Dep. 10:7-9” which is not included in Docket No. 73-23).) In her deposition, Peters is asked to review Exhibit 11, (see Docket No. 68-10), which the questioner posits consists of articles found on the internet and placed in the claims file of Sirius’ underwriter. (Docket No. 73-23 at 6.) At no point in the deposition excerpts provided to the court by the defendant does Peters authenticate these documents or testify that she relied solely upon them to make her coverage decision. Other documents attached to the defendant’s proposed findings of fact and cited by defendant in its proposed findings of fact and in its briefs are similarly un-authenticated. The only other testimony in the portion of Peters’ deposition provided to the court by the defendant that indicates the basis for Peters’ decision to deny Redmond’s claim is her statement that another employee offered his opinion that the claim was not covered because he reviewed an ambulance report and had done some [*43] internet research regarding where Redmond was skiing. (Docket No. 73-23 at 5.)

In contrast to the defendant’s submissions, the plaintiff has provided the court with the entirety of Peters’ deposition and thus the court turns to this document. (Docket No. 68-12.) Having reviewed this document, the court is able to fill in many of the gaps left by the defendant. In her deposition, Peters discusses Exhibit 7, which she describes as “insured notes” comprised of “notes that were put under the insured, Ryan Redmond.” (Docket No. 68-12 at 15.) Exhibit 7, which was provided to the court by the plaintiff as Docket No. 68-7, is largely the same as the “claim log,” (Docket No. 73-24), provided by the defendant, although the formatting of these documents differs and Docket No. 68-7 includes pages and entries beyond those included in the defendant’s excerpt. Based upon this more complete review, the court concludes that Peters’ testimony regarding this document is sufficient to bring the document within Fed. R. Evid. 803(6), and thus it may be appropriately considered by the court in deciding the present motion.

This document indicates that the decision to deny coverage was made by at least July [*44] 29, 2011. (Docket Nos. 73-24 at 3; 68-12 at 20.) The notes indicate that on July 5, 2011, the underwriter was informed that Redmond was in a “skiing accident with a head injury.” (Docket No. 73-24 at 6.) An hour later, another employer of the underwriter spoke with personnel at the hospital and noted, “Admitted through ER / head trauma / fall from cliff.” (Docket No. 73-24 at 5.) Ten days later, following a conversation with the helicopter ambulance service that assisted in Redmond’s rescue, the notes state, “Appeared scene was Lupine Meadows, but was unsure if that is a ski resort or park.” (Docket No. 73-24 at 4.) Later that day, a follow-up call confirmed that Lupine Meadows was in Grand Teton National Park. (Docket No. 73-24 at 4.) Four days thereafter, the underwriter communicated to the hospital that there might not be coverage because preliminary investigation indicated Redmond’s “injuries were as a result of backcountry skiing.” (Docket No. 73-24 at 4.)

The court is not able to find that the information contained in this document was necessarily sufficient to deny Redmond’s claim. Thus, the court looks to what other information was available to the underwriter. Peters testified [*45] that she also relied upon a report from the helicopter ambulance service that transported Redmond. (Docket No. 68-12 at 20.) This report is included in Exhibit AA to Sirius’ statement of proposed facts, (Docket No. 73-27 at 12-16), and, like many of the defendant’s exhibits, is not authenticated by way of a declaration, affidavit, or deposition testimony. Nonetheless, the court shall consider it because the plaintiff does not dispute that this document is the Omniflight Helicopters-Idaho medical records received by the underwriter. (Docket No. 96, ¶107.) The portion of this report captioned “History of Present Illness” states, in part, “Pt had been backcountry skiing when he fell down steep slope approx. 800 ft. Took approx. 2 hrs before pt could be reached.” (Docket No. 73-27 at 12.)

Taken together, all of this information provided a reasonable basis to deny Redmond’s claim pursuant to the skiing exclusion in the policy. As discussed above, the terms “prepared” and “marked,” as used within the skiing exclusion, can be reasonably understood in different ways. One such reasonable understanding would be the understanding that Peters testified she held, which there is no coverage for skiing [*46] outside of the boundaries of a ski run at a traditional ski resort. One could reasonably understand “backcountry skiing” to mean that Redmond was necessarily not skiing at a traditional ski resort. Subsequent information further corroborated the conclusion that Redmond was skiing in a remote wilderness area. (See Docket No. 73-14 (National Park Service Search & Rescue Report received by the underwriter on Sept. 15, 2011).) Thus, based upon the information provided, the decision to deny coverage was reasonable. This decision might prove incorrect, but it was not done in bad faith. There is simply no evidence that could permit a reasonable finder of fact to conclude by clear and convincing evidence that Peters’ decision to deny the claim was the result of a “dishonest purpose, moral obliquity, furtive design, or ill will.”

Thus, the court turns to the question of whether Sirius’ conduct in this litigation might form the basis for a claim of bad faith. Redmond argues that Sirius acted in bad faith by using tactics to try to get Redmond to concede Sirius’ counterclaim, which Sirius eventually withdrew, and by failing to reconsider the denial of coverage after certain deposition testimony. [*47] (Docket No. 89 at 9.)

On the issue of post-litigation conduct vis-à-vis bad faith, courts across the country have been dealing with two distinct issues. The first is evidentiary: whether an insurer’s conduct in litigation following the filing of a claim alleging bad faith might be used as evidence to support that claim of bad faith. The second is substantive: whether an insurer’s conduct in litigation might itself form the basis for a claim of bad faith. The Court of Appeals of Indiana addressed these issues in Gooch v. State Farm Mut. Auto. Ins. Co., 712 N.E.2d 38 (Ind. Ct. App. 1999), and noted the general reluctance of courts to permit post-litigation conduct as evidence to support a prior claim of bad faith. Id. at 42 (discussing Howard v. State Farm Mut. Auto. Ins. Co., 316 S.C. 445, 450 S.E.2d 582 (1994); Palmer v. Farmers Ins. Exch., 261 Mont. 91, 861 P.2d 895 (1993); Nationwide Mut. Ins. Co. v. Clay, 525 So. 2d 1339 (Ala.1987)). With respect to the second question, however, the Court of Appeals of Indiana concluded that when an insurer is sued, under certain circumstances, its post-litigation conduct might form an independent basis for a new bad faith claim.

In Gooch, the plaintiff [*48] sued her insurer seeking coverage under the uninsured motorist provision of her policy. After the action was filed, the defendant insurer insisted that she also pursue an action against another individual in a foreign jurisdiction, an action the plaintiff believed would be frivolous. Believing that the insurance company was making these demands to frustrate her suit and thus pressure her to settle, the plaintiff amended her complaint to also allege bad faith. The court of appeals concluded that such litigation conduct by an insurer might present a cognizable claim of bad faith, and in doing so the court emphasized that the plaintiff was relying upon conduct that occurred only before she filed her bad faith claim.

What Redmond is attempting to allege here are two distinct bad faith claims. The first related to the denial of his claim; the second related to Sirius’ conduct in the litigation. But as the court addressed in a prior order, (Docket No. 80), Redmond’s complaint raises bad faith only with respect to Sirius’ denial of his claim. Although Gooch involved a case initiated on a wholly distinct coverage claim, an insurer is likely not absolved of its duty of good faith simply because [*49] a plaintiff, like Redmond, initiates a suit alleging bad faith. If a suit is commenced containing a claim of bad faith and an insurer subsequently engages in litigation conduct that itself constitutes a distinct claim of bad faith, in accordance with Gooch, that plaintiff may amend her complaint to state a second distinct claim of bad faith.

Here, Redmond did not seek to amend his complaint to add a claim of post-litigation bad faith. Instead, he has attempted to expand the bad faith claim in his complaint by supplementing his discovery responses. The defendant objected and, as is fully discussed in this court’s prior order, (Docket No. 80), the court rejected this means of constructively amending his complaint. There was no amended complaint and therefore no such claim of post-litigation bad faith is properly before the court. Thus, Redmond necessarily cannot obtain the relief he seeks. Accordingly, the court shall grant the defendant’s motion for summary judgment as to the entirety of Redmond’s bad faith claim.

V. MOTION TO STRIKE PLAINTIFF’S DEMAND FOR A JURY TRIAL

Alongside its choice of law and venue provisions, the insurance policy also states, “All trials regarding disputes under [*50] this insurance shall be exclusively presented to and determined solely by the court as the trier of fact, without a jury.”

The plaintiff contends that this waiver of his right to a jury trial is unenforceable because it was not knowingly and intelligently made and the jury waiver provision is unconscionable. (Docket No. 95.) In reply, the defendant cites IFC Credit Corp. v. United Bus. & Indus. Fed. Credit Un., 512 F.3d 989, 993-94 (7th Cir. 2008), for the proposition that a jury waiver provision need not be knowing, voluntary, or intentional to be enforceable. (Docket No. 102 at 2-3.) However, the contract at issue in IFC was a traditional commercial contract under the Uniform Commercial Code. Although insurance policies are a form of contract and traditional rules of contract interpretation are applied, there is a vast difference between a UCC agreement for the sale of goods and a consumer insurance policy.

In deciding whether a contract provision waiving the right to a jury trial is enforceable, the court looks to the state substantive law that governs the contract. IFC, 512 F.3d at 994. Thus, the court looks to Indiana law. The plaintiff cites only Wisconsin law; the defendant, although [*51] citing Indiana law, does not identify any Indiana case explicitly addressing the question of a jury trial waiver in an insurance contract. The court’s own research has failed to identify any court that has applied Indiana law to directly answer this question.

Notwithstanding, the Court of Appeals for the Seventh Circuit noted that when it comes to the waiver of the right to a jury trial, an agreement to arbitrate a claim (and thus give up not only a jury trial but a judicial forum altogether) is arguably more onerous than an agreement to simply have a claim heard by a court instead of a jury, yet arbitration agreements are regularly enforced in all sorts of contracts without any special requirements. Id. Thus, in the absence of any case law addressing the validity of an insurance contract provision waiving simply the right to a jury trial, the court looks to how Indiana would regard a similar provision waiving the right to present a claim in any judicial forum.

Indiana law does not prohibit the use of arbitration provisions in insurance contracts, see Ind. Code sec. 34-57-2-1; rather, Indiana has a strong policy in favor of enforcing arbitration provisions in all contracts, including [*52] insurance contracts, see, e.g., Pekin Ins. Co. v. Hanquier, 984 N.E.2d 227, 228 (Ind. Ct. App. 2013); HemoCleanse, Inc. v. Phila. Indem. Ins. Co., 831 N.E.2d 259, 262 (Ind. Ct. App. 2005).

If an insurer can include in a standard insurance contract a provision whereby an insured will give up his right to not only a trial by jury but also the right to bring his action in any court, the court has little reason to conclude that a provision waiving the right to a jury trial is inherently unenforceable or any extraordinary means are necessary to render it effective. Thus, the court shall enforce the contract as written.

The plaintiff also raises separate arguments limited to the applicability of the waiver of the right to a jury trial to his bad faith claim. These arguments are basically a restatement of the arguments the plaintiff offered to support his contention that the choice of law provision did not apply to the bad faith claim. For the same reasons set forth above in the discussion of that motion, the court would reject these arguments. But more importantly, having concluded that the defendant is entitled to summary judgment on the plaintiff’s bad faith claim, this aspect of the plaintiff’s [*53] argument is moot.

Finally, the court rejects the plaintiff’s argument that the defendant waived the opportunity to object to the plaintiff’s demand for a jury trial. Under the circumstances of this case, the court finds the present stage of litigation to be an appropriate time for the defendant to raise its objection. Therefore, the defendant’s motion to strike the plaintiff’s demand for a trial by jury, (Docket No. 50), shall be granted.

VI. DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S EXPERT REPORT

The defendant objects to opinions offered by the plaintiff’s expert, Daniel Doucette (“Doucette”), many of which are now moot in light of the court’s decisions on other motions. Thus, having concluded that the defendant is entitled to summary judgment on the plaintiff’s bad faith claim, Doucette’s opinions on this topic are no longer relevant. The only topic on which Doucette opined that remains to be resolved is the question of what the phrase “away from prepared and marked in-bound territories” means.

On this topic, Doucette’s conclusions read more like a legal brief than the opinions of an expert. (See Docket No. 61-1 at 19.) He does not opine as to how this phrase is commonly understood in [*54] the insurance industry, but rather offers general conclusions as to what this phrase might mean in the context of skiing. Although Redmond argues that Doucette is qualified to testify also as a ski expert, (Docket No. 91 at 9-10), the court is not persuaded. Doucette may be an experienced skier, but absent additional knowledge, skill, training, or education, the court finds that Doucette is not qualified to testify as an expert on skiing. The court is not going to open the witness stand to a parade of recreational skiers, each of whom would opine as to the meaning of the relevant phrase. An expert is supposed to assist the trier of fact and Doucette’s opinion on these phrases is not at all helpful.

Therefore, to the extent that his opinions are not moot, the court shall grant the defendant’s motion to exclude Doucette from testifying and strike his expert report, (Docket No. 60).

VII. MOTIONS TO STRIKE

Redmond moved to strike portions of the Sirius’ brief in support of its motion for summary judgment on the plaintiff’s bad faith claim, (Docket No. 84), and to strike Sirius’s reply to its proposed findings of fact, (Docket No. 107.)

The first motion to strike, (Docket No. 84), relates to [*55] the fact that in its brief in support of its motion for summary judgment, Sirius relied upon an email exchange it had not previously disclosed in discovery on the grounds that it was privileged, (see Docket No. 76 at 9-10). In response, Sirius apparently does not oppose the motion to strike, (Docket No. 97 at 4 (“Sirius will withdraw the previously withheld document at issue…”); its opposition is limited to the request for sanctions. Having considered the parties’ briefs on the matter, the court does not find that sanctions are appropriate. Therefore, the motion to strike shall be granted; the request for sanctions shall be denied.

The second motion to strike relates to the fact that Sirius replied to Redmond’s response to Sirius’ proposed findings of fact. Responding to this motion, Sirius’ counsel acknowledges that he misread what was permissible under the relevant local rule, Civ. L.R. 56(b)(3)(B), and agrees to withdraw the pleading. (Docket No. 109.) Therefore, the defendant having withdrawn the relevant pleading, (Docket No. 106), the motion to strike, (Docket No. 107), is moot.

VIII. CONCLUSION

Notwithstanding his travels, Redmond was “residing in” Wisconsin when he renewed his [*56] travel insurance policy with Sirius. Therefore, under Wis. Stat. § 631.83(3)(b), the policy’s forum selection clause is unenforceable. Balancing all other relevant factors, the court does not find that transfer to the Southern District of Indiana pursuant to 28 U.S.C. § 1404(a) is appropriate. Therefore, Sirius’ motion to transfer will be denied.

However, the choice of law provision within the contract shall be given its effect, and therefore Sirius’ motion for an order holding that Indiana law applies to the present case will be granted.

As for the parties’ motions for summary judgment, the court concludes that the mountaineering exclusion is unambiguous and does not exclude coverage for Redmond’s injuries. As for the skiing exclusion, Redmond was engaged in recreational skiing, and there is no evidence that Redmond was skiing “in violation of applicable laws, rules or regulations … and/or against the advice of the local ski school or local authoritative body.” However, the provision excluding coverage for skiing “away from prepared and marked in-bound territories” is subject to varying interpretations and the evidence before the court is insufficient to enable the court to conclude [*57] that either party is entitled to summary judgment on the question of whether the policy provides coverage for Redmond’s injuries.

The court shall grant the defendant’s motion for summary judgment with respect to the plaintiff’s bad faith claim. The evidence is insufficient to permit a reasonable finder of fact to conclude that Sirius acted in bad faith in denying Redmond’s claim. Moreover, Sirius’ litigation conduct cannot form the basis for a bad faith claim because Redmond never amended his complaint to state such a claim.

The defendant’s motion to strike the plaintiff’s demand for a jury trial is granted in accordance with the plain language of the policy, and therefore in any trial in this matter, the court shall serve as the finder of fact.

The report of plaintiff’s expert Daniel Doucette is largely moot in light of other conclusions by the court, but to the extent it is not moot, the defendant’s motion to strike is granted. The plaintiff lacks the qualifications to testify as an expert on skiing and his opinions regarding the meaning of the phrase “away from prepared and marked in-bound territories” are insufficiently supported to come within the appropriate ambit of an expert.

Finally, [*58] with respect to the plaintiff’s motions to strike, the defendant concedes both. Therefore, the plaintiff’s motion to strike portions of the defendant’s brief in support of its motion for summary judgment is granted and its reply to the plaintiff’s response to the defendant’s proposed findings of fact is deemed withdrawn. The court declines to impose sanctions.

IT IS THEREFORE ORDERED that the defendant’s motion to transfer this case to the United States District Court for the Southern District of Indiana, (Docket No. 54), is denied.

IT IS FURTHER ORDERED that the defendant’s motion to strike the plaintiff’s demand for a jury trial, (Docket No. 56), is granted.

IT IS FURTHER ORDERED that the defendant’s motion for an order that Indiana law governs the plaintiff’s claims, (Docket No. 58), is granted.

IT IS FURTHER ORDERED that the defendant’s motion to exclude and strike the expert report of Daniel Doucette, (Docket No. 60), is granted to the extent that the motion is not moot.

IT IS FURTHER ORDERED that the plaintiff’s motion for summary judgment on coverage, (Docket No. 63), is denied.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment on future medical expenses, (Docket [*59] No. 66), is denied as moot.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment on the plaintiff’s breach of contract claim and the defendant’s breach of contract counterclaim, (Docket No. 70), is denied

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment on the plaintiff’s bad faith claim, (Docket No. 75), is granted.

IT IS FURTHER ORDERED that the plaintiff’s expedited non-dispositive motion to strike, (Docket No. 84), is granted. The request for sanctions is denied.

IT IS FURTHER ORDERED that the plaintiff’s expedited non-dispositive motion to strike, (Docket No. 107), is denied as moot. The defendant’s reply, (Docket No. 106), is considered withdrawn.

IT IS FURTHER ORDERED that the court shall hold a telephonic conference on January 28, 2014 at 9:00 AM (CST) to discuss scheduling this matter for trial. The court will initiate the call. Not less than 48 hours before the call, counsel participating in the call shall provide to the court via email to GoodsteinPO@wied.uscourts.gov a direct telephone number where counsel may be reached for the call. The court strongly discourages the use of mobile phones for conference calls.

Dated at Milwaukee, Wisconsin [*60] this 15th day of January, 2014.

/s/ Aaron E. Goodstein

AARON E. GOODSTEIN

U.S. Magistrate Judge

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