Russell Adams v. Northland Equipment Company, Inc.

2014 WI 79

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP580
COMPLETE TITLE: Russell Adams,
Plaintiff-Appellant-Petitioner,
v.
Northland Equipment Company, Inc., Cincinnati
Insurance
Company and The League of Wisconsin
Municipalities Mutual
Insurance Company,
Defendants-Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS
347 Wis. 2d 549, 830 N.W.2d 722
(Ct. App. 2013 – Unpublished)

OPINION FILED: July 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 4, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: James Welker

JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Thomas E. Greenwald, Rockford, and oral argument by Thomas E.
Greenwald.

For the defendants-respondents, Northland Equipment Company
and Cincinnati Insurance Company, there was a brief by James M.
Ryan, Dustin T. Woehl, and Kasdorf, Lewis & Swietlik, S.C.,
Milwaukee, and oral argument by James M. Ryan.
2
 2014 WI 79
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP580
(L.C. No. 2010CV2126)

STATE OF WISCONSIN : IN SUPREME COURT

Russell Adams,

Plaintiff-Appellant-Petitioner, FILED
v.
JUL 22, 2014
Northland Equipment Company, Inc., Cincinnati
Insurance Company and The League of Wisconsin Diane M. Fremgen
Clerk of Supreme Court
Municipalities Mutual Insurance Company,

Defendants-Respondents.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision

of the court of appeals1 affirming an order of the Rock County

Circuit Court2 that compelled plaintiff Russell Adams to accept a

settlement offer from defendant Northland Equipment Company,

Inc. that Adams' employer's worker's compensation insurer, The

League of Wisconsin Municipalities Mutual Insurance Company

(LWMMIC), chose to accept.

1
Adams v. Northland Equip. Co., No. 2012AP580, unpublished
slip op. (Wis. Ct. App. Mar. 7, 2013).
2
The Honorable James Welker presided.
 No. 2012AP580

¶2 Adams sued Northland and its insurer, Cincinnati

Insurance Company, pursuant to Wis. Stat. § 102.29(1) (2011-12)3

for personal injuries Adams sustained while plowing snow for his

employer, the Village of Fontana.4 Northland offered $200,000 to

settle Adams' claim. LWMMIC accepted Northland's offer and

moved the circuit court to compel Adams to accept it as well.

The circuit court granted LWMMIC's motion.

¶3 Adams contends that the circuit court erred because a

worker's compensation insurer cannot compel an employee to

accept settlement of a third party tort claim. Adams reasons

that Wis. Stat. § 102.29(1) cannot be interpreted to permit the

circuit court to compel settlement because such an

interpretation would violate his right to a jury trial, which

Article I, Section 5 of the Wisconsin Constitution secures. He

also contends that the circuit court's order violates procedural

due process and is the product of an erroneous exercise of

discretion because, among other things, the circuit court did

not conduct an evidentiary hearing.
¶4 We conclude that a circuit court may compel an

employee to accept settlement of the claim the legislature

created in Wis. Stat. § 102.29(1). In such a claim, both the

employee and the worker's compensation insurer share the right

to sue third parties; the employee and the worker's compensation

3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
4
LWMMIC was named as a defendant, but its interest was that
of a plaintiff pursuant to Wis. Stat. § 102.29(1).

2
 No. 2012AP580

insurer have an equal voice in the prosecution of the claim;

recovery from the claim is apportioned in the manner described

in § 102.29(1)(b); and the circuit court is empowered to resolve

any disputes arising between the employee and the worker's

compensation insurer during the prosecution of their claim,

including those disputes involving settlement.

¶5 We also conclude that our interpretation of Wis. Stat.

§ 102.29(1) does not violate Adams' right to a jury trial

because the claim § 102.29(1) creates is not the counterpart of

a cause of action at law recognized at the time of the adoption

of the Wisconsin Constitution. We further conclude that the

circuit court's authority to compel an employee to accept

settlement does not violate procedural due process because

judicial resolution of disputes is part of the statutory claim.

Lastly, we conclude that the circuit court appropriately

exercised its discretion by defining the dispute, taking stock

of the relative positions of the parties and considering matters

that impacted the fairness of the settlement. Accordingly, we
affirm the decision of the court of appeals.

I. BACKGROUND

¶6 This case concerns personal injuries Adams sustained

during the course of his employment with the Village of Fontana.

On February 21, 2009, Adams was plowing the driveway to the

Village Hall when the blade of his plow struck the lip of a

sidewalk. Adams claims that when the plow came into contact

with the lip, the truck stopped suddenly and threw him up into
the ceiling of the cab of the truck, "causing excessive
3
 No. 2012AP580

compression forces to be applied to his spine." The truck then

continued past the end of the driveway, crossed the street, and

struck a curb, where it came to a final stop and another plow

operator discovered it. Adams was not wearing a seat belt at

the time of the accident.

¶7 The plow was equipped with springs that were designed

to absorb some of the shock when the plow experienced a certain

amount of resistance. The springs were to reduce the shock by

allowing the bottom of the plow to rotate toward the truck, or

"trip." In order to function correctly, the springs needed to

be tight enough to plow snow, but loose enough to trip when the

plow hit fixed obstacles.

¶8 Before Adams' accident, the Village had been

experiencing problems with the plow Adams used in that it was

tripping too easily when pushing heavy snow. The Village

brought the plow to Northland for repair.

¶9 Northland explained that the two Henderson brand

springs on the plow were worn out and in need of replacement.
Northland did not have the exact Henderson brand replacement

springs for the plow, and could not obtain them before an

expected snowstorm. Therefore, Northland and the Village

decided to replace the Henderson brand springs with Western

brand springs that Northland had on hand. The replacement

springs worked without incident for the year and a half prior to

Adams' accident.

¶10 As a result of the accident, Adams suffered permanent
injury to his spine. He brought personal injury claims against
4
 No. 2012AP580

Northland and its insurer, alleging negligence in the repair of

the plow and strict liability for the malfunction of the

replacement springs. LWMMIC, which had paid Adams $148,332 in

worker's compensation benefits for medical expenses and

temporary total and permanent partial disability as of the date

of the motion to compel, participated in Adams' suit pursuant to

the claim created by Wis. Stat. § 102.29(1).

¶11 Northland and Cincinnati Insurance moved for summary

judgment, arguing that Adams could not prove negligence or

causation. They asserted that the deposition testimony of

Adams' expert, Robert Wozniak, showed that Wozniak could not

"establish[] a standard for a safe tension level in the snow

plow's springs" and therefore, Adams could not prove that "this

accident would not have happened at different tensions."

¶12 At the summary judgment motion hearing, the circuit

court pressed Adams' attorney, Thomas Greenwald, on this issue

asking, "So [Northland] put on [springs] that ha[d] more

tension. Now what's the evidence going to be that that was
negligence?"

¶13 Greenwald responded that Wozniak was "going to testify

that that created an unreasonable risk of harm by adding that

much spring, requiring that much tension, and that unreasonable

risk of harm was that the plow would not trip when required to

trip and that that unreasonable risk of harm is what caused this

event to occur." As to the basis for this testimony, Greenwald

explained that Wozniak's opinions were part of a memo Greenwald

5
 No. 2012AP580

prepared for Wozniak and "asked at his deposition are these

[Wozniak's] opinions, and [Wozniak said] yes."

¶14 After explaining that Greenwald would not be allowed

to prove Adams' case at trial by "present[ing Wozniak] with some

legal gobbledy gook and ask[ing] him to confirm it," the circuit

court denied defendant's summary judgment motion. The court

explained its decision as follows:

I think Mr. Greenwald is spitting into an awfully
strong wind here, and it may be that even this case
will get dismissed at the end of the plaintiff's case,
I don't know, but I do think that there is at least
that minimum quantity of opinion by an engineer that
says that this is an accident that was caused by
springs that were too tight.

How a jury——I'm sure [Wozniak is] going to be
asked at trial, 'Well, how tight would have been tight
enough?' And I——it will be interesting to see what his
answer [i]s. But I think that this is not a proper
case that should be decided on summary judgment, and
for that reason the motion is denied.
¶15 Four days after the circuit court denied Northland's

summary judgment motion, LWMMIC received a $200,000 settlement

offer. LWMMIC's attorney contacted Greenwald, who informed
LWMMIC that Adams would not accept the offer.

¶16 LWMMIC then attempted to negotiate resolution with

Adams. It proposed that in exchange for relinquishing control

of the litigation to Adams, Adams release LWMMIC from liability

for future worker's compensation payments. After Adams rejected

LWMMIC's proposal, LWMMIC unilaterally accepted the settlement

offer and moved the circuit court to compel Adams to accept it
as well.

6
 No. 2012AP580

¶17 The circuit court received submissions from both

parties and held a hearing on the motion. LWMMIC explained that

it wished to accept the settlement offer because of the risks of

a defense verdict at trial, citing concerns about "comparative

fault, seatbelt negligence, and damages." LWMMIC also said that

it thought Adams' case had "not improved" since the summary

judgment hearing because Robert Krenz, an expert witness for the

defense, tested the plow and found that it "actually does

trip[,] even at just 2 ½ m.p.h. with very little movement of the

driver."

¶18 Adams responded that: (1) a court has no authority to

compel an employee to accept settlement; (2) if a court had such

authority, an evidentiary hearing to evaluate the merits of the

case would be necessary before compelling settlement; and (3)

the settlement offer in the present case is "grossly inadequate"

and "not in the best interest" of Adams.

¶19 The circuit court granted LWMMIC's motion to compel

settlement. It concluded that it had the authority to do so
under Dalka v. American Family Mutual Insurance Co., 2011 WI App

90, 334 Wis. 2d 686, 799 N.W.2d 923; that an evidentiary hearing

was unnecessary; and that the risk of a finding of no liability

at trial exceeded the possibility of a verdict that exceeded the

settlement offer.

¶20 Adams appealed and the court of appeals affirmed. As

with the circuit court, the court of appeals concluded that

Dalka controlled the issue of authority to compel settlement.
As to Adams' argument about the evidentiary hearing, it
7
 No. 2012AP580

concluded that due process did not require a "mini-trial" of

Adams' claims because when we affirmed an order compelling a

compensation insurer to accept settlement in Bergren v. Staples,

263 Wis. 477, 57 N.W.2d 714 (1953), we did not require a mini-

trial. Dalka, 334 Wis. 2d 686, ¶12. Lastly, it concluded that

the circuit court appropriately exercised its discretion because

it inquired into the nature and strength of the case, assessed

the risk of a no liability jury verdict, and came to a logical

conclusion. We affirm the decision of the court of appeals.

II. DISCUSSION

A. Standard of Review

¶21 This case requires us to interpret and apply portions

of Wis. Stat. § 102.29. Statutory interpretation and

application are questions of law for our independent review,

although we benefit from the analyses of the court of appeals

and circuit court. State v. Novy, 2013 WI 23, ¶21, 346 Wis. 2d

289, 827 N.W.2d 610.

¶22 Whether a claim made pursuant to Wis. Stat.
§ 102.29(1) includes the right to a jury trial such that

compelling an employee to accept settlement violates the

employee's right to a jury trial under Article I, Section 5 of

the Wisconsin Constitution is also a question of law for our

independent review. State v. Schweda, 2007 WI 100, ¶12, 303

Wis. 2d 353, 736 N.W.2d 49; Vill. Food & Liquor Mart v. H & S

Petroleum, Inc., 2002 WI 92, ¶7, 254 Wis. 2d 478, 647 N.W.2d

177.

8
 No. 2012AP580

¶23 Whether a party has been denied procedural due process

is yet another question of law for our independent review.

State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63.

And finally, we review a circuit court's decision to exercise

the authority granted to it under Wis. Stat. § 102.29(1) to

resolve disputes in the prosecution of a § 102.29(1) claim under

an erroneous exercise of discretion standard. See Bergren, 263

Wis. at 485.

B. Worker's Compensation Principles
¶24 "Worker's Compensation is a legislatively enacted

compromise designed to bring employers and employees together in

a mutually beneficial scheme of guaranteeing benefits in the

event of work-related injury and disease." Nelson v. Rothering,

174 Wis. 2d 296, 302, 496 N.W.2d 87 (1993). The major goal of

worker's compensation is to "provid[e], in the most efficient,

most dignified, and most certain form, financial and medical

benefits for the victims of work-connected injuries." 1 Lex K.

Larson, Larson's Workers' Compensation Law § 1.03[2], at 1-5
(2012).

¶25 By enacting worker's compensation, "the legislature

intended to impose upon employers an absolute liability,

regardless of fault; and in return for this burden, intended to

grant employers immunity from all tort liability on account of

injuries to employees." Guse v. A. O. Smith Corp., 260 Wis.

403, 406-7, 51 N.W.2d 24 (1952). By entering into an employment
relationship, then, the employer and employee make it part of

9
 No. 2012AP580

their relationship to resolve work-related injury disputes

within the statutory worker's compensation framework.

¶26 While this statutory scheme provides an employer with

near immunity in tort, negligent third parties do not enjoy the

same benefit. An employee, employer and the payer of worker's

compensation all may sue a third party in tort under Wis. Stat.

§ 102.29(1). Nelson, 174 Wis. 2d at 300; § 102.29(1).

¶27 The distribution of proceeds from a Wis. Stat.

§ 102.29 third party claim "gives effect to the original

compromise underlying the Worker's Compensation Act by

specifying what it determined to be a reasonable apportionment

of proceeds between the parties involved," notwithstanding what

the common law would have provided. Nelson, 174 Wis. 2d at 303.

Stated otherwise, third party claims brought within the scope of

§ 102.29 are governed by the statutory scheme of worker's

compensation, not by common law. See Mulder v. Acme-Cleveland

Corp., 95 Wis. 2d 173, 177-78, 290 N.W.2d 276 (1980).

¶28 We also note that worker's compensation alters more
than just the common law rights of an employer and employee.

For instance, we have construed the worker's compensation

statute as preventing a third party tortfeasor from seeking

contribution from a negligent employer, "even though the

employer was substantially more at fault than the third party."

Id. at 177. We permitted this harsh result for the third party

who, unlike the employer and employee, gains nothing from the

worker's compensation statutes because "worker's compensation

10
 No. 2012AP580

laws constitute an all-pervasive legislative scheme." Id. at

180.

C. Interpretation of Wis. Stat. § 102.29(1)

¶29 We begin our interpretation of Wis. Stat. § 102.29(1)

with the language of the statute, through which the legislature

expressed the statute's meaning. Richards v. Badger Mut. Ins.

Co., 2008 WI 52, ¶20, 309 Wis. 2d 541, 749 N.W.2d 581; Wis.

Indus. Energy Group, Inc. v. Pub. Serv. Comm'n of Wis., 2012 WI

89, ¶15, 342 Wis. 2d 576, 819 N.W.2d 240. "If the meaning of

the statute is plain, we ordinarily stop the inquiry." State ex

rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000

WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).

¶30 We give statutory language "its common, ordinary, and

accepted meaning, except that technical or specially-defined

words or phrases are given their technical or special

definitional meaning." Id. Because "[c]ontext is important to

meaning," we interpret statutory language "in the context in
which it is used; not in isolation but as part of a whole."

Id., ¶46. We also review statutory history and consult our own

prior decisions that examined the same statute as part of our

plain meaning analysis. See Richards, 309 Wis. 2d 541, ¶22

("statutory history is part of a plain meaning analysis"); State

v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848 ("when

engaging in statutory interpretation, we are assisted by prior

decisions that have examined the relevant statutes").

11
 No. 2012AP580

¶31 Wisconsin Stat. § 102.29(1) provides in relevant part:

(a) The making of a claim for compensation
against an employer or compensation insurer for the
injury or death of an employee shall not affect the
right of the employee . . . to make claim or maintain
an action in tort against any other party for such
injury or death, hereinafter referred to as a 3rd
party; nor shall the making of a claim by any such
person against a 3rd party for damages . . . affect
the right of the injured employee or the employee's
dependents to recover compensation. An employer or
compensation insurer that has paid or is obligated to
pay a lawful claim under this chapter shall have the
same right to make claim or maintain an action in tort
against any other party for such injury or
death. . . .

(b) . . . Each shall have an equal voice in the
prosecution of the claim, and any disputes arising
shall be passed upon by the court before whom the case
is pending, and if no action is pending, then by a
court of record or by the department.
¶32 Adams relies heavily on the first sentence of the

statute, reading it as providing an employee with an unfettered

right "to make claim or maintain an action in tort" against a

third party. As to the language providing the compensation

insurer with "the same right" and "an equal voice in the

prosecution" thereof, Adams says that language is ineffective to

negate the "guarantee" in the first sentence. The same holds

true, according to Adams, for the language providing for

judicial resolution of disputes. He says it does not say that a

circuit court, in resolving disputes, can in any way limit the

employee's right that the first sentence grants.

¶33 We disagree with Adams. The third party claim set out
in Wis. Stat. § 102.29 differs from a personal injury claim

12
 No. 2012AP580

under common law because of the nature of the claim the

legislature created, which we discuss below.

1. Shared claim

¶34 Reading the statute as a whole, we conclude that the

plain language of Wis. Stat. § 102.29(1) shows that the claim

against a third party is a shared claim. In the case before us,

it is shared between Adams and the compensation insurer, LWMMIC.

Section 102.29(1) provides that an employee and a compensation

insurer have "the same right to make claim" and "an equal voice

in the prosecution of the claim." The common, ordinary, and

accepted meaning of these words plainly demonstrates that one

claimant is not favored over the other.

¶35 The first sentence of the statute does not alter the

shared nature of the claim that the statute plainly creates.

Statutory history also shows how the legislature developed the

shared claim of Wis. Stat. § 102.29.

¶36 For example, in 1911, making a claim for worker's

compensation greatly altered the employee's ability to file a
tort claim against a third party because when a worker's

compensation claim was made, it "operate[d] as an [employee's]

assignment of any cause of action in tort" to the employer.

Wis. Stat. ch. 110a, § 2394-25 (1911). In 1913, the legislature

amended the statute somewhat and added a provision that gave an

injured employee a choice about whether to accept worker's

compensation or seek relief for his injuries from a third party.

The relevant statute in 1913 provided that by making a claim

13
 No. 2012AP580

against a third party, an employee waived any claim for worker's

compensation from the employer. Ch. 110a, § 2394-252. (1913).

¶37 We interpret the first sentence of Wis. Stat.

§ 102.29(1) as establishing that, unlike previous versions of

the law, an employee is able to pursue a claim in tort against a

third party while maintaining a claim for worker's compensation

benefits. However, the claim created in § 102.29 is a shared

claim. That is, the employee shares the right to make such a

claim with the payer of worker's compensation benefits,

generally the compensation insurer. In such a claim, the

employee and the compensation insurer have an "equal voice" in

the claim's prosecution. Our interpretation harmonizes the

statute as a whole, giving effect to every word, and is

consistent with the statutory history underlying § 102.29. See

State v. Gilbert, 2012 WI 72, ¶39, 342 Wis. 2d 82, 816 N.W.2d

215 (in order to avoid an absurd result, "we must interpret the

statute . . . in a way that harmonizes the provisions of the

statute and gives effect to every word").
¶38 The statutory directive that the right to bring and

prosecute third party tort claims is shared leads us to the

conclusion that Wis. Stat. § 102.29 created a new type of claim

the nature of which is controlled by the statute, not by common

law. Sharing the right to bring suit with another party

necessarily alters the nature of the common law claim. See

generally Schweda, 303 Wis. 2d 353, ¶103 (Prosser, J.,

concurring in part, dissenting in part) (illustrating the

14
 No. 2012AP580

principle that claims often are defined, at least in part, by

who may bring them).

¶39 We begin with the decision to file a lawsuit. An

employee's decision to sue for work-related injuries under Wis.

Stat. § 102.29(1)(a) is fundamentally different than it would be

absent the statute because the employee would not have to give

the compensation insurer the "opportunity to join in the making

of such claim." The employee would be able to make choices at

the beginning of the lawsuit, such as the timing of filing the

lawsuit, the venue in which to file the lawsuit, and whom to

name as defendants, without regard to the compensation insurer.

See Antony L. Ryan, Principles of Forum Selection, 103 W. Va. L.

Rev. 167, 168 (2000) ("plaintiff's forum-selection privilege is

axiomatic to the common-law tradition"). In contrast,

§ 102.29(1)(a) imposes an obligation on both the employee and

compensation insurer to give the other notice of their actions

so that both can participate.

¶40 Furthermore, the shared nature of this third party
claim is such that when an employee declines to assert a third

party claim, a compensation insurer can sue for damages that are

personal to the employee, such as those for pain and suffering,

without joining the employee. Threshermens Mut. Ins. Co. v.

Page, 217 Wis. 2d 451, 462, 577 N.W.2d 335 (1998).

2. Division of proceeds

¶41 The proceeds of a third party claim do not belong to

the injured employee. Rather, if the Wis. Stat. § 102.29(1)
third party claim succeeds, § 102.29(1)(b)1.–3. directs how the
15
 No. 2012AP580

proceeds must be apportioned between the persons entitled to

bring the claim. This is a significant departure from the

common law because the statute's remedy provisions "supersede[]

the employee's [common law] right to be 'made whole.'" Id. at

462. Therefore, rather than retaining the entire amount of any

recovery for himself or herself, an employee must share that

recovery according to the statutory formula. § 102.29(1)(b)1.-

3. An employee also may be made to bear, by deduction from the

damages awarded, some of the compensation insurer's costs of

collection, including attorney fees. § 102.29(1)(b)1. and

(1)(c). Furthermore, we have repeatedly held that the statutory

distribution of proceeds scheme is not an embodiment of the

common law principle of subrogation. Bergren, 263 Wis. at 482;

Threshermens, 217 Wis. 2d at 480. Rather, it is a part of the

claim created by § 102.29.

3. Judicial resolution of disputes

¶42 Wisconsin Stat. § 102.29 also requires that disputes

between those who are bringing § 102.29 claims be resolved by
the circuit court. However, Adams argues that a compensation

insurer cannot compel acceptance of a settlement, wherein he

makes at least an implied argument that settlement is not a

"dispute" under § 102.29(1). We briefly explain why we reach

the opposite conclusion, beginning again with the plain language

of the statute.

¶43 After providing that an employee and compensation

insurer have an "equal voice" in the prosecution of their claim,
Wis. Stat. § 102.29(1)(b) provides that "any disputes arising
16
 No. 2012AP580

shall be passed upon by the court before whom the case is

pending." By using the term "any," the legislature chose

language that does not limit the type of disputes on which a

circuit court must pass. Additionally, our decision in Bergren,

in which we held that an employee can compel a compensation

insurer to accept a disputed settlement, would seem to foreclose

the possibility that differing opinions about whether to accept

settlement is not a "dispute" within the meaning of § 102.29(1),

as Adams contends. Bergren, 263 Wis. at 483.

¶44 We also note that although, as the circuit court

stated, Wis. Stat. § 102.29(1) does not provide a great deal of

guidance on the criteria to be used in settling disputes, the

statute's mandatory language plainly states that the circuit

court is empowered to do so. The statutory provision, "any

disputes arising shall be passed upon by the court before whom

the case is pending," is broadly stated, but that does not

create an ambiguity in the statute's meaning. See generally

Phillips v. Parmelee, 2013 WI 105, ¶¶22-23, 351 Wis. 2d 758, 840
N.W.2d 713 (concluding that the phrase, "any loss rising out

of," is broadly stated but not ambiguous).

¶45 Having concluded that the plain language of Wis. Stat.

§ 102.29(1) establishes the nature of the third party claim for

a worker's injury that includes broad authority for the circuit

court to settle disputes, we turn to Adams' claim that the

circuit court's authority cannot be so broad as to require him

to accept a settlement offer because to do so would violate his

17
 No. 2012AP580

constitutional right to a jury trial, which is preserved by

Article I, Section 5 of the Wisconsin Constitution.

D. Jury Trial

¶46 Adams correctly notes that when given alternative

statutory interpretations, we will select the interpretation

that results in a constitutionally sufficient statute. Am.

Family Mut. Ins. Co. v. DOR, 222 Wis. 2d 650, 667, 586 N.W.2d

872 (1998); Madison Metro. Sewerage Dist. v. DNR, 63 Wis. 2d

175, 185, 216 N.W.2d 533 (1974). Adams then argues that we

should not interpret Wis. Stat. § 102.29(1) in a way that would

allow a circuit court to compel an employee to accept settlement

because that would violate the employee's constitutional right

to a jury trial preserved by Article I, Section 5 of the

Wisconsin Constitution.

¶47 At the outset, we note that we are not presented with

a choice of two reasonable constructions of Wis. Stat.

§ 102.29(1) because the language of the statute is not

ambiguous. Rather, we evaluate Adams' argument both as an
alternative justification to our plain meaning interpretation

and because Adams' arguments seem to include a contention that

the circuit court order violates not only Article I, Section 5

of the Wisconsin Constitution, but also § 102.29(1).

¶48 Article I, Section 5 of the Wisconsin Constitution

provides as follows:

The right of trial by jury shall remain
inviolate, and shall extend to all cases at law
without regard to the amount in controversy; but a
jury trial may be waived by the parties in all cases

18
 No. 2012AP580

in the manner prescribed by law. Provided, however,
that the legislature may, from time to time, by
statute provide that a valid verdict, in civil cases,
may be based on the votes of a specified number of the
jury, not less than five-sixths thereof.
¶49 This provision does not accord all claims a jury

trial. Historically, we have applied its protection only to

civil cases, whereas the jury protection in criminal cases flows

from Article 1, Section 7. Schweda, 303 Wis. 2d 353, ¶17; Dane

Cnty. v. McGrew, 2005 WI 130, ¶13, 285 Wis. 2d 519, 699 N.W.2d

890; Bennett v. State, 57 Wis. 69, 74, 14 N.W. 912 (1883). In
civil cases, we have interpreted Section 5 to mean that the

right to a jury trial is preserved for a statutory claim if (1)

the statute codified a cause of action that existed in 1848 when

Wisconsin's Constitution was adopted; and (2) the cause of

action was an action at law rather than in equity. Schweda, 303

Wis. 2d 353, ¶19; Vill. Food, 254 Wis. 2d 478, ¶16.

1. Village Food test

¶50 The test for whether the constitutional right to a

jury trial attaches to a statutory claim is set out in Village

Food:

[A] party has a constitutional right to have a
statutory claim tried to a jury when: (1) the cause
of action created by the statute existed, was known,
or recognized at common law at the time of the
adoption of the Wisconsin Constitution in 1848; and
(2) the action was regarded as at law in 1848.

Vill. Food, 254 Wis. 2d 478, ¶16.
¶51 While there need not be "specific identity" between

the statutory claim and a cause of action in 1848, the party
asserting a constitutional right to a jury trial must prove that

19
 No. 2012AP580

the two claims differ only slightly. McGrew, 285 Wis. 2d 519,

¶21. Put another way, the cause of action in 1848 must be

"essentially [a] counterpart" to the statutory claim in order

for Section 5's jury trial protection to apply. Id. (quoting

Vill. Food, 254 Wis. 2d 478, ¶28) (alteration in McGrew).

¶52 Village Food describes by example the degree of

similarity between a statutory claim and a cause of action that

existed in 1848 that one must demonstrate when asserting a

constitutional right to a jury trial. The defendant in Village

Food was accused of violating certain provisions of the Unfair

Sales Act, Wis. Stat. § 100.30. Vill. Food, 254 Wis. 2d 478,

¶3. We began our discussion by identifying the purpose of

§ 100.30 as preventing "retailers, distributors, and wholesalers

of certain types of goods (namely alcohol, tobacco products,

and motor vehicle fuel) from selling their merchandise at an

artificially low price in order to attract patronage and thereby

cause harm to competing businesses and to consumers of those

products." Id., ¶18. We then examined the mechanism by which
the statute achieved this goal, a minimum markup formula. Id.,

¶19. We also considered the remedies available under the Unfair

Sales Act and the parties who could bring an action to enforce

the Act's provisions. Id., ¶¶20-21.

¶53 After examining the statutory claim, we proceeded to

evaluate the sources of law the defendant identified in support

of its argument that a cause of action counterpart existed in

1848. Based on the descriptions in Sir William Blackstone's
Commentaries on the Laws of England, we concluded that certain
20
 No. 2012AP580

public trade offenses, "forestalling the market, regrating, and

engrossing" were "of the same 'nature'" as the case before us.

Id., ¶27. Because these public trade offenses were legal and

not equitable in nature in 1848, we concluded that the defendant

had a right to a jury trial secured by Article I, Section 5 of

the Wisconsin Constitution. Id., ¶33.

¶54 Our later decisions in McGrew and Schweda cautioned

litigants that vague similarities, such as an analogous class of

actions or shared "doctrinal roots," are not enough under

Village Food. McGrew, 285 Wis. 2d 519, ¶20; Schweda, 303

Wis. 2d 353, ¶34. In McGrew, we compared the speed limit in

Wis. Stat. § 346.57(4)(h) to the cause of action for common law

nuisance in 1848. We concluded that the statute was not the

counterpart of common law nuisance because "the class of actions

categorized as 'nuisances' [were] simply too broad to be

analogized to a speeding violation." McGrew, 285 Wis. 2d 519,

¶25. Similarly in Schweda, we concluded that nuisance law was

too sprawling a concept to constitute a counterpart to certain
environmental regulations. Schweda, 303 Wis. 2d 353, ¶¶32-34.

2. Village Food application

¶55 Within this legal context, we evaluate whether the

claim Adams asserts under Wis. Stat. § 102.29 accords him a

constitutional right to a jury trial. We begin by noting that

although Adams asserts a constitutional right to a jury trial

that precludes requiring him to settle a § 102.29(1) claim, he

fails to discuss the Village Food test. Rather than undertaking
the sort of analysis our decisions in Village Food, McGrew and
21
 No. 2012AP580

Schweda conclude is necessary, Adams states in a conclusory

fashion:

The right to seek compensation for the wrongs
committed by Northland and its employees is a right
going back to the early English common law. It was
initially referred to as "trespass on the case." The
Law of Torts, Dan B. Dobbs, West Group, 2000, Section
14, p. 26. It clearly was a right known and
recognized at common law at the time of the adoption
of the Wisconsin Constitution in 1848.
¶56 Adams' assertion does not constitute a meaningful

comparison of the claim created in Wis. Stat. § 102.29(1) to a

trespass on the case or to any other cause of action that

existed in 1848. Instead, stating his contention in this

fashion implies that it is sufficient to note that "[a]

negligence action for damages is an action at law and is

encompassed by the constitutional jury guaranty." Windsor

Square Homeowners Ass'n v. Citation Homes, 62 Cal. Rptr. 2d 818,

820 (Cal. Ct. App. 1997).5 Adopting Adams' contention, which is

unaccompanied by analysis, would "render the Village Food test a

nullity because 'present causes of action of all sorts assessed

under this test will . . . have to be compared [only] generally

. . . in order to invoke the constitutional protection to a

trial by jury.'" Schweda, 303 Wis. 2d 353, ¶40 (quoting Vill.

5
California, like Wisconsin and 46 other states, provides
for a state constitutional right to a jury trial in civil cases
using language "to the effect that the right shall 'remain
inviolate.'" State v. Schweda, 2007 WI 100, ¶89, 303 Wis. 2d
353, 736 N.W.2d 49 (Prosser, J., concurring in part, dissenting
in part).

22
 No. 2012AP580

Food, 254 Wis. 2d 478, ¶46 (Wilcox, J., concurring in part,

dissenting in part)).

¶57 In regard to Adams' assertion, we note that under the

ancient common law, actions that we would categorize as

negligence claims were sometimes brought as trespass on the

case. Mueller v. Brunn, 105 Wis. 2d 171, 180, 313 N.W.2d 790

(1982) (explaining that "[t]respass on the case is the ancestor

of the present day action for negligence where problems of legal

and factual cause arise."). At common law, an injured party is

entitled to bring a claim against a tortfeasor for injuries that

party sustained due to the tortfeasor's negligence. See Nichols

v. Progressive N. Ins. Co., 2008 WI 20, ¶¶11-12, 308 Wis. 2d 17,

746 N.W.2d 220 (explaining the elements of common law negligence

and some of the common law rules for such a claim). A common

law negligence claim belongs to the injured party or his estate.

See Sampson v. Laskin, 66 Wis. 2d 318, 224 N.W.2d 594 (1975)

(which arose out of personal injuries to two men, one of whom

died, causing his estate to own the claim).
¶58 The claim created by Wis. Stat. § 102.29(1) is not the

counterpart of a common law claim maintained to compensate an

injured person for his injuries. Rather, by contrast, a

§ 102.29(1) claim furthers the comprehensive economic

regulations that worker's compensation has put in place. As we

have explained, "[w]orker's compensation laws are basically

economic regulations by which the legislature, as a matter of

public policy, has balanced competing societal interests."
Mulder, 95 Wis. 2d at 180. The remedies prescribed for a
23
 No. 2012AP580

§ 102.29(1) claim wherein the injured employee shares the

statutory claim demonstrate part of those economic regulations.

This includes the worker's compensation payer's right to

reimbursement, even when the employer was at fault for the

employee's injury. Id. at 178-79.

¶59 There are numerous examples of the legislature's

comprehensive scheme in this third party statutory claim.

First, the third party claim is shared with the payer of

worker's compensation, Wis. Stat. § 102.29(1)(a); second, the

claim accords the person with whom the claim is shared an "equal

voice" in bringing the claim and in its prosecution, id.; third,

the parties must give notice to one another so both parties can

participate, id.; fourth, proceeds received from the claim are

apportioned according to a statutory formula wherein the injured

party has no right to all that is recovered, § 102.29(1)(b);

fifth, statutory apportionment of recovered damages may preclude

an injured party from being made whole, Threshermens, 217

Wis. 2d at 462; and sixth, disputes that arise during the
prosecution of the claim between the parties entitled to bring a

third party claim are resolved by the circuit court,

§ 102.29(1)(a); Bergren, 263 Wis. at 483 ("where two claimants

cannot agree as to the proper prosecution of a claim, then the

court can pass upon that dispute, without a jury trial").

¶60 Because an employee's right to sue a third party under

Wis. Stat. § 102.29(1) is part of a statutory scheme that

creates a statutory claim, abrogates common law remedies and

24
 No. 2012AP580

provides a required distribution scheme,6 the legislature was

well within its authority to define and limit the employee's

claim in such a way that an employee could be compelled to

accept settlement. See Threshermens, 217 Wis. 2d at 462

(explaining that the statutory scheme "supersedes the employee's

right to be 'made whole'"). Stated otherwise, § 102.29(1)

abrogates the employee's common law claim against third parties

and creates a statutory claim that differs so significantly from

a common law negligence claim that the statutory claim does not

have a counterpart at common law in 1848. Accordingly, we

refuse to interfere with § 102.29(1) by engrafting common-law

principles on the comprehensive choices the legislature made.

See Martinez v. Ashland Oil, Inc., 132 Wis. 2d 11, 16, 390

N.W.2d 72 (Ct. App. 1986) (concluding that the statutory

directive for the distribution of proceeds was part of an

overall statutory scheme that changed common law).

¶61 Having concluded that Adams does not have a

constitutional right to a jury trial under Article I, Section 5
of the Wisconsin Constitution for the Wis. Stat. § 102.29(1)

claim, we now turn to Adams' due process challenge.

6
For example, the employee is not a necessary party when
the payer of worker's compensation benefits makes a third party
tort claim based on the employee's injury pursuant to Wis. Stat.
§ 102.29(1), even when the payer seeks compensation for the
employee's pain and suffering. Threshermens Mut. Ins. Co. v.
Page, 217 Wis. 2d 451, 462, 480, 577 N.W.2d 335 (1998).

25
 No. 2012AP580

E. Due Process

¶62 Adams argues that the circuit court's order violated

his procedural due process rights because he did not know why

LWMMIC accepted Cincinnati's settlement offer and the court did

not hold an evidentiary hearing at which he could present

witnesses.

¶63 We reject Adams' first assertion out of hand. In a

letter accompanying its motion to compel, of which Greenwald

received a copy, LWMMIC explained that the "liability problems

with [this] case," which had been thoroughly vetted at the

recent summary judgment motion, caused it to accept the offer.

LWMMIC "fear[ed] that a trial [would] result in a defense

verdict," and preferred the certain recovery the settlement

offer presented. At the motion hearing, LWMMIC reiterated that

it wished to accept settlement because the summary judgment

hearing "laid bare" many deficiencies in Adams' case. Adams

cannot reasonably contend that he did not know why LWMMIC wished

to accept settlement, and we now turn to the type of hearing
Adams believes is required.

¶64 Procedural due process under the Fourteenth Amendment

to the United States Constitution and Article I, Section 1 of

the Wisconsin Constitution protect against government actions

that deprive an individual of life, liberty, or property without

due process of the law. "In procedural due process claims, the

deprivation by state action of a constitutionally protected

interest in 'life, liberty, or property' is not in itself
unconstitutional; what is unconstitutional is the deprivation of
26
 No. 2012AP580

such an interest without due process of law." Casteel v.

McCaughtry, 176 Wis. 2d 571, 579, 500 N.W.2d 277 (1993) (quoting

Zinermon v. Burch, 494 U.S. 113, 125 (1990)).

¶65 We employ a two-step analysis to determine whether

there has been a violation of procedural due process. First, we

ask "whether there exists a[n] . . . interest which has been

interfered with by the State"; second, we examine "whether the

procedures attendant upon that deprivation were constitutionally

sufficient." Id. (quoting Kentucky Dep't of Corrections v.

Thompson, 490 U.S. 454, 460 (1989)).

¶66 The interest at stake in this case is Adams' statutory

claim against Northland and its insurer. Because it is Wis.

Stat. § 102.29(1), and not the constitution or the common law

that gives rise to and defines Adams' claim, his interest is

coterminous with the statutory claim. See Bd. of Regents of

State Colleges v. Roth, 408 U.S. 564, 577 (1972) (explaining

that property interests "are created and their dimensions are

defined by existing rules or understandings that stem from an
independent source such as state law"). Adams' interest is the

right, together with LWMMIC, to prosecute a claim against a

third party, subject to judicial resolution of disputes on which

the two cannot agree.

¶67 Since Adams' interest is created by statute, and that

statute limits the right by providing a mechanism for resolving

disputes, Adams cannot complain that the resolution mechanism

violates due process. Judicial resolution of disputes is a
"built-in" feature of the claim Wis. Stat. § 102.29(1) creates,
27
 No. 2012AP580

not a procedure for depriving Adams of a common law or

constitutional right. That the legislature selected judicial

resolution as the mechanism for balancing (and therefore

limiting) an employee's right to proceed against a third party,

rather than a statute of limitations or an assignment as other

states have done, is immaterial. See, e.g., Md. Code Ann., Lab.

& Empl. § 9-902 (West 2014) (employer has the exclusive right to

bring an action against a third party for two months after the

worker's compensation award, after which the employee may do

so); Okla. Stat. tit. 85, § 348 (2013) (an employee who elects

to take worker's compensation benefits assigns any claim against

a third party to the employer). Because Adams' interest was

subject to the limitation he challenges, he has not been

deprived of any constitutionally protected interest; therefore,

we do not reach the second step of our analysis. See Casteel,

176 Wis. 2d at 579.

F. Erroneous Exercise of Discretion

¶68 Adams' final argument is that the circuit court's
order constituted an erroneous exercise of discretion. Adams

faults the circuit court for: (1) not applying a legal

standard; (2) not holding an evidentiary hearing at which he

could have presented live witness testimony that would have

demonstrated the strength of his case; and (3) failing to use a

rational process to reach a reasonable conclusion.

¶69 We begin with Adams' contention regarding a legal

standard for compelling an employee to accept settlement. The
statute gives only the following directive to circuit courts
28
 No. 2012AP580

faced with a motion to compel: The employee and compensation

insurer "[e]ach shall have an equal voice in the prosecution of

the claim, and any disputes arising shall be passed upon by the

court before whom the case is pending." Wis. Stat.

§ 102.29(1)(b). As the circuit court recognized, this does not

constitute "a great deal of guidance" from the legislature as to

"how [a] court should deal with these matters."

¶70 The legislature's decision not to provide a more

precise standard should not be held against the circuit court.

Yet by arguing that the circuit court did not apply a precise

legal standard, this is what Adams does.

¶71 Adams contends that a court cannot compel an employee

to accept settlement unless the settlement offer is in the best

interests of the employee. Adams appears to import this

standard from settlements involving minors that also require

court approval. See Wis. Stat. § 807.10. We reject such a

standard because unlike children, who "are the special objects

of the solicitude of the courts" and are "entitled to most
jealous care," employees occupy no such position under the law.

Jensen v. McPherson, 2002 WI App 298, ¶11, 258 Wis. 2d 962, 655

N.W.2d 487 (quoting Brandt v. Brandt, 161 Wis. 2d 784, 788-89,

468 N.W.2d 769 (Ct. App. 1991) (further citations omitted)).

¶72 Employees have the same right as a compensation

insurer to bring a claim under Wis. Stat. § 102.29(1) and an

equal voice in the prosecution thereof. Therefore, we conclude

that the standard a circuit court should employ when deciding
whether to compel a party to accept settlement is one that
29
 No. 2012AP580

evaluates whether the settlement is reasonably fair to both

parties. Fairness, rather than a best interest standard, is

more in keeping with the language of the statute, which does not

favor either person entitled to bring the claim. It also echoes

the standard under federal law for approving a class action

settlement, which requires that the settlement offer be "fair,

reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). The

federal standard is persuasive because class actions raise

concerns similar to Adams' about compelling a litigant to accept

settlement. See generally Ortiz v. Fibreboard Corp., 527 U.S.

815, 845-46 (1999) ("the certification of a mandatory class

followed by settlement of its action for money damages

obviously implicates the Seventh Amendment jury trial rights of

absent class members"). We now turn to the process of

determining whether a settlement offer is fair.

¶73 Settlement decisions are the product of variables that

are difficult to quantify and compare. These include litigation

costs, settlement costs, stakes in the case, and likelihood of
success at trial. Richard A. Posner, An Economic Approach to

Legal Procedure and Judicial Administration, 2 J. Legal Stud.

399, 417-29 (1973). This case aptly demonstrates that

professional estimations of these variables can vary greatly.

The decision of a circuit court who has examined whether a

settlement offer is reasonably fair to both parties therefore

deserves wide latitude.

¶74 As a result of the briefing and thorough questioning
on defendants' summary judgment motion, the disputed issues in
30
 No. 2012AP580

the present case were well defined for the circuit court before

LWMMIC's motion to compel settlement. It appeared that Adams

was going to have to submit evidence beyond what he submitted in

opposition to the summary judgment motion in order to prove his

case. Evidence that could squarely establish a safe level of

tension for the springs, such as an industrial standard or

expert testimony, seemed to be absent. At least at the point of

the summary judgment motion, Adams appeared to rely on

conclusory legal statements from a memo Greenwald prepared for

Wozniak to prove negligence, rather than on evidence. While the

court did not grant defendants' summary judgment motion, we

agree with LWMMIC that the summary judgment motion exposed many

of the deficiencies in Adams' case.

¶75 The circuit court also had the benefit of additional

materials the parties submitted relating to the motion to compel

settlement. These showed that, at least in the opinion of

LWMMIC, problems with Adams' case had increased since the

summary judgment proceeding. For example, additional testing
had shown that the plow Adams was driving at the time of

accident did trip, even at low speeds. Defendants' neurosurgeon

was going to testify that Adams would not have sustained his

injuries had he been wearing a seat belt, and defendants were

arguing that the statutory limit on a reduction of damages for

not wearing a seat belt did not apply.

¶76 Adams' response to LWMMIC's motion was that the

circuit court was obligated to conduct an evidentiary hearing at
which Adams could "present, through documentary evidence and
31
 No. 2012AP580

testimony of witnesses, that which he intended to prove [and]

that which he could prove, in order to demonstrate that this

proposed settlement was not in his best interests because his

case was much stronger than what [the circuit court] opined."

¶77 Adams' suggestion of a mini-trial is not only

unworkable, but it significantly lessens the value of the

proposed settlement, i.e., stopping the accruing costs of

litigation. "The very purpose of the compromise [by settlement]

is to avoid the delay and expense of such a trial." Parker v.

Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982) (quoting Young v.

Katz, 447 F.2d 431, 433 (5th Cir. 1971)). If a circuit court is

not presented with enough information about the case to conclude

that it would be fair to compel a party to accept settlement,

the solution is to deny the motion, not to pre-try the case.

See id. (quoting Young, 447 F.2d at 433) ("In determining the

adequacy and reasonableness of the proposed settlement, . . .

'the court does not try the case'").

¶78 We also agree with LWMMIC that to the extent Adams
"had some 'smoking gun' witness or testimony that he decided not

to use in defending the summary judgment motion, such an

argument runs contrary to the nature of contemporary pretrial

procedure, the aim of which is to prevent trial by ambush and

minimize surprises."

¶79 In addition to fleshing out liability disputes, the

circuit court ordered the parties to prepare a breakdown of the

distribution of any recovery under Wis. Stat. § 102.29(1).
Under the statutory scheme, Adams would receive one-third of any
32
 No. 2012AP580

recovery remaining after deduction of reasonable costs of

collection, which could include the attorney fees for both

Adams' and LWMMIC's counsel, as well as his own attorney fees.

§ 102.29(1)(b)1. and (1)(c). LWMMIC would then be reimbursed up

to the $148,332 it had already paid in compensation, plus

amounts it "may be obligated to make in the future."

§ 102.29(1)(b)2. Any remainder, sometimes called a "cushion,"

would go to Adams. § 102.29(1)(b)3.

¶80 With the predicted distribution of recovery before

him, the circuit court was able to further evaluate the

settlement. That LWMMIC was willing to settle for roughly one-

third of what it had already paid in compensation, leaving it

unreimbursed for two-thirds of the amount it had already paid

and for all future payments, may have demonstrated the sincerity

of LWMMIC's concerns about Adams' case. That LWMMIC would be

entitled to reimbursement for past and future compensation

payments, which Greenwald acknowledged would be substantial

given the nature and extent of Adams' injuries, could also
inform the circuit court's assessment of the settlement offer.

If Adams' future medical expenses were so substantial that he

would be unlikely to receive any cushion, Adams' interest could

be characterized as primarily in one-third of the recovery after

deduction of costs.

¶81 Having defined the dispute, taken stock of the

parties' positions, and considered matters that impact the

fairness of the settlement offer to all plaintiffs, the circuit

33
 No. 2012AP580

court granted the motion to compel, explaining its decision as

follows:

I believe based upon the evidence submitted in
support of and in opposition to the motion for summary
judgment that the risk of a finding of no liability in
this case exceeds the possibility of recovering
something beyond $200,000, and for that reason the
motion is granted.
We agree with the court of appeals that "[t]he circuit court's

decision reflected a logical interpretation of the facts

surrounding the settlement offer and consideration of the

appropriate factors bearing on the decision," not an erroneous

exercise of discretion. While the circuit court did not

specifically say that it evaluated the settlement to determine

whether it was reasonably fair to both parties, we are satisfied

that the court thoroughly considered matters that bear on that

standard. Accordingly, the decision of the court of appeals is

affirmed.

III. CONCLUSION

¶82 We conclude that a circuit court may compel an

employee to accept settlement of the claim the legislature

created in Wis. Stat. § 102.29(1). In such a claim, both the

employee and the worker's compensation insurer share the right

to sue third parties; the employee and the worker's compensation

insurer have an equal voice in the prosecution of the claim;

recovery from the claim is apportioned in the manner described

in § 102.29(1)(b); and the circuit court is empowered to resolve

any disputes arising between the employee and the worker's

34
 No. 2012AP580

compensation insurer during the prosecution of their claim,

including those disputes involving settlement.

¶83 We also conclude that our interpretation of Wis. Stat.

§ 102.29(1) does not violate Adams' right to a jury trial

because the claim § 102.29(1) creates is not the counterpart of

a cause of action at law recognized at the time of the adoption

of the Wisconsin Constitution. We further conclude that the

circuit court's authority to compel an employee to accept

settlement does not violate procedural due process because

judicial resolution of disputes is part of the statutory claim.

Lastly, we conclude that the circuit court appropriately

exercised its discretion by defining the dispute, taking stock

of the relative positions of the parties and considering matters

that impacted the fairness of the settlement. Accordingly, we

affirm the decision of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

35
 No. 2012AP580.awb

¶84 ANN WALSH BRADLEY, J. (dissenting). The lynchpin

of the majority's analysis lies in its unsupportable assertion

that the common law right of the employee to bring a tort action

against a negligent third party was abrogated by the enactment

of Wis. Stat. § 102.29. Majority op., ¶27. Such an assertion

unfortunately rewrites history, sub silencio overrules almost a

century of well-settled precedent, and ignores the words of the

statute.

¶85 I say "rewrites history," because an examination of

the history reveals that it is the common law right of an

employee to bring a tort action against the employer that was

alone abrogated by the 1911 Worker's Compensation Act——not the

common law right of an injured employee to bring a common law

tort action against a negligent third party.

¶86 As this court pointedly stated in 1927, an examination

of the legislative and statutory history of the worker's

compensation law "leave[s] no doubt that the legislature

intended to preserve the right to maintain an action in tort
against any person, other than the employer, who is responsible

for the acts causing injury to a workman." Cermak v. Milwaukee

Air Power Pump Co., 192 Wis. 44, 48, 211 N.W. 354 (1927).

¶87 I say "sub silencio overrules" because without even

acknowledging its existence, the majority apparently overrules

almost a century of our precedent that has clearly and

repeatedly provided that the common law right to maintain a tort

action against a negligent third party was unaffected by the
enactment of Wis. Stat. § 102.29.

1
 No. 2012AP580.awb

¶88 In 1915, this court stated "the law [the Worker's

Compensation Act] does not attempt in any way to abridge the

remedies which an employee of one person may have at law against

a third person for a tort which such third person commits

against him." Smale v. Wrought Washer Mfg. Co., 160 Wis. 331,

334, 151 N.W. 803 (1915) (emphasis supplied); see also Severin

v. Luchinske, 271 Wis. 378, 383, 73 N.W. 2d 477 (1955) ("That

remedy [a third party action] existed at common law and was

neither enlarged nor impaired by enactment of sec. 102.29.").1

¶89 Finally, if the history and a century of precedent

were not enough, the language of the statute expressly answers

whether the enactment of the Worker's Compensation Act abrogated

the right of the injured employee to bring a common law cause of

action in tort against a negligent third party. It did not.

¶90 The statute expressly provides that the bringing of a

worker's compensation claim "shall not affect the right of the

employee, the employee's personal representative, or other

person entitled to make claim or maintain an action in tort
against any other party for such injury or death . . . ." Wis.

Stat. § 102.29(1).

¶91 Under the majority's precarious analysis, it

determines that because the injured employee's common law right

to bring a tort action against a negligent third party has been

abrogated by the Worker's Compensation Act, there is no right to

a jury trial. Accordingly, it concludes that a court may compel

an employee to settle a claim, but offers no meaningful guidance

1
For additional cases see the discussion below.

2
 No. 2012AP580.awb

on the standard or process to be used. Instead, it merely

cautions circuit courts to be "fair." A standard of "fairness"

provides no standard at all.

¶92 Contrary to the majority, I conclude that based on the

history of the worker's compensation law, longstanding

precedent, and the express language of the statute, the

employee's common law cause of action against a third party

tortfeasor was not abrogated by the Worker's Compensation Act.

Because an employee's common law cause of action against a third

party tortfeasor preexisted the Wisconsin Constitution and

continues to this day, the Wisconsin Constitution requires that

the right to a jury trial apply to such a claim. Accordingly,

I conclude that the court cannot compel settlement here, and I

respectfully dissent.

I

¶93 The majority's analysis of whether Adams has a right

to a jury trial is misguided from the beginning. It introduces

the issue as whether there is a right to a jury trial for a
statutory claim and then frames its analysis as whether the

claim created by Wis. Stat. § 102.29(1) is the counterpart of a

cause of action at law that was recognized at the time of the

adoption of the Wisconsin Constitution. Majority op., ¶¶5, 48,

57 (emphasis supplied). However, this is not the issue. The

issue is whether a litigant had a right to sue a third party

tortfeasor at common law for a work-related injury.

¶94 Article I, section 5 of the Wisconsin Constitution
protects the right to a trial by jury. It provides: "The right

3
 No. 2012AP580.awb

of trial by jury shall remain inviolate, and shall extend to all

cases at law without regard to the amount in controversy." Wis.

Const. Art. I, §5. "This section clearly indicates that non-

statutory causes of action at law, where the jury trial was

guaranteed before the passage of the state constitution, would

continue to have a guaranteed right to a jury trial attached

even after the passage of the constitution." Vill. Food &

Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, ¶10, 254

Wis. 2d 478, 647 N.W.2d 177 (emphasis in original). Thus, if a

litigant files suit based on a common law cause of action, and

the right to a jury trial for that cause of action preceded the

passage of the state constitution, the litigant has a

constitutional right to a jury trial.

¶95 The common law right of an individual to seek redress

for an injury caused by another has existed for centuries. As

far back as 1768, Blackstone discussed personal actions "whereby

a man claims satisfaction in damages for some injury done to his

person or property." Sir William Blackstone, 3 Commentaries on
the Laws of England 117 (1768).2 Blackstone referred to such

actions as "trespass upon the case," and noted that such cases

were assessed by a jury. Id. at 122, 273-74. As the majority

acknowledges, "trespass on the case" is the ancestor of the

present day action for negligence. Majority op., ¶56 (quoting

Mueller v. Brunn, 105 Wis. 2d 171, 180, 313 N.W.2d 790 (1982)).

2
When ascertaining whether a cause of action existed in
1848, we often resort to Sir William Blackstone's Commentaries
on the Laws of England (1778). State v. Abbott Labs., 2012 WI
62, ¶34, 341 Wis. 2d 510, 816 N.W.2d 145.

4
 No. 2012AP580.awb

¶96 Actions at common law, such as negligence, are not

easily abrogated by statute. It has long been established that

"[s]tatutes are not to be construed as changing the common law

unless the purpose to effect such change is clearly expressed

therein. To have such effect 'the language [of the statute]

must be clear, unambiguous and peremptory.'" Maxey v.

Redevelopment Authority of Racine, 94 Wis. 2d 375, 399, 288

N.W.2d 794 (1980) (quoting Wisconsin Bridge & Iron Co. v.

Industrial Comm., 233 Wis. 467, 474, 290 N.W. 199 (1940)).

¶97 Because the common law right of an employee to seek

redress from a third party tortfeasor is a right preceding the

Wisconsin Constitution, it cannot be abrogated absent clear,

unambiguous, peremptory statutory language. As discussed below,

there is nothing in the history of the Worker's Compensation

Act, this court's interpretation of it, or the Act's plain

language to indicate that it was intended to perempt the common

law right to maintain an action against a third party

tortfeasor.
A. History

¶98 Wisconsin has played a significant role in the history

of worker's compensation law in this country. On May 3, 1911,

Wisconsin became the first state in the nation to pass a broad,

constitutionally valid worker's compensation law. Borgnis v.

Falk Co., 147 Wis. 327, 133 N.W. 209 (1911); Joseph A. Ranney,

Trusting Nothing to Providence: A History of Wisconsin's Legal

System 344 (1999). In response, Employers Mutual Insurance
Company of Wausau was formed and established in a one-room

5
 No. 2012AP580.awb

office above a cigar store in downtown Wausau. On September 2,

1911, one day after the law became effective, it issued the

nation's first constitutionally valid worker's compensation

policy. Soon thereafter worker's compensation legislation

became effective in nine other states.3

¶99 The Wisconsin Industrial Commission was created also

as a result of the passage of the worker's compensation

legislation. Its first chair was Charles Crownhart who

subsequently served as a justice on the Wisconsin Supreme Court.

No doubt his knowledge and experience illumined some of the

early worker's compensation decisions of this court——decisions

that are sub silencio being overruled by the majority's holding

today.

¶100 Prior to 1911 employees had the right to sue their

employers at common law but often lost because of common law

defenses. Robert Asher, "The 1911 Wisconsin Workmen's

Compensation Law: A Study in Conservative Labor Reform,"

Wisconsin Magazine of History, Vol. 57 at 125 (1973). There was
no recovery against an employer if it was determined that the

employee assumed the risk, the employee was negligent in any

way, or the injury occurred because of the negligence of a

fellow employee. However, if the employee was successful, there

was no limit on the amount the employee could recover. Id.;

3
Nevada, New Jersey, California, Washington, Kansas, New
Hampshire, Ohio, Illinois, and Massachusetts. Gregory Krohm,
Workers' Compensation: Wisconsin Pioneers the Nation's First
Constitutional Worker's Compensation Law (July 2011), available
at www.wipps.org/media/docs/2010_Krohm_History_WC-July-2011.doc.

6
 No. 2012AP580.awb

Robert W. Ozanne, The Labor Movement in Wisconsin: A History

125-26 (1984).

¶101 The Worker's Compensation Act was passed as a

compromise between the employer's and employee's interests.

Employers lost their common law defenses, trading them for a no

fault system under which employees were obliged to accept a

limited and scheduled amount. Mulder v. Acme-Cleveland Corp.,

95 Wis. 2d 173, 180, 290 N.W.2d 276 (1980).

¶102 The abrogation of common law claims against employers

in the Worker's Compensation Act did not extend to common law

claims against third party tortfeasors. When it was first

enacted in 1911, the Worker's Compensation Act provided that

making a claim for compensation under the law would "act as an

assignment of any cause of action in tort which the employee or

his personal representative may have against any other party."

§1, ch. 50, Laws of 1911.

¶103 An amendment to the Worker's Compensation Act in 1913

provided that the making of a claim by an employee against a
third party "shall operate as a waiver of any claim for

compensation." §1, ch. 599, Laws of 1913. Although the law

allowed an employee to assign the employee's common law tort

claim and elect to either pursue a tort claim against a third

party or a claim for worker's compensation, it did not eliminate

the common law right to sue a third party tortfeasor.

¶104 Even though the common law right to sue a third party

remained, most employees chose the worker's compensation claim
and few employers exercised their assignment rights. Robert L.

7
 No. 2012AP580.awb

Millender, Expanding Employees' Remedies and Third Party

Actions, 17 Clev. St. L. Rev. 32, 33 (1968). This left the

third party tortfeasor with "a windfall." Id. Although there

was justification to remove tort liability from an employer

because the employer was liable regardless of fault under the

Worker's Compensation Act, the third party tortfeasor gave up

nothing and ended up with the equivalent of immunity due to

employers' reluctance to sue. Id.

¶105 Accordingly, in 1931 the Worker's Compensation Act was

amended to eliminate the requirement that an employee select

between a common law tort claim against a third party tortfeasor

and a worker's compensation claim. Drafting file for ch. 132,

Laws of 1931, Legislative Reference Bureau, Madison, Wis. ("The

third party liability is to be changed so that an injured

workman may in all cases claim compensation without surrendering

his right to sue a third party."). The new language provided:

The making of a claim for compensation against an
employer or compensation insurer for the injury or
death of an employe shall not affect the right of the
employe or his personal representative to make a claim
or maintain an action in tort against any other party
for such injury or death, but the employer or his
insurer shall be entitled to reasonable notice and an
opportunity to join in such action.
§2, ch. 132, Laws of 1931. Despite slight amendments to the law

since 1931, it continues to this day to protect the employee's

common law right to make a claim against a third party

tortfeasor. Wis. Stat. § 102.29(1).

B. Century of Precedent

8
 No. 2012AP580.awb

¶106 Consistent with its history, courts have repeatedly

recognized that the Worker's Compensation Act does not impair an

employee's common law right to maintain a tort action against a

third party tortfeasor. Almost one hundred years ago, the

Wisconsin Supreme Court succinctly expressed the law which

should be guiding the majority today: "The law does not attempt

in any way to abridge the remedies which an employee of one

person may have at law against a third person for a tort which

such third person commits against him." Smale, 160 Wis. at 334.

¶107 Likewise, in Cermak, 192 Wis. at 47, the court,

interpreting an early version of the statute, stated "[t]he

workmen's compensation act clearly evidences a legislative

intent that the payment of compensation by an employer shall not

relieve the one whose tortious act caused this injury from

liability therefor. This intent is shown by sec. 102.29,

Stats., which carefully preserves the right to maintain an

action in tort against such other person whose acts caused the

injury."4
¶108 The court explained that although receiving worker's

compensation benefits "operates as an assignment of any cause of

action in tort," that assignment "is merely for the purpose of

repaying to the employer the amount of the compensation paid the

injured employee." Id. at 47-48. Accordingly, it concluded

4
The dissent in Cermak also agreed with this
interpretation, stating "[t]here exists no doubt in my mind that
the workmen's compensation act preserves to the injured workman
. . . such cause of action as may exist at common law against a
third person." Cermak v. Milwaukee Air Power Pump Co., 192 Wis.
44, 51, 211 N.W. 354 (1927) (Rosenberry, J. dissenting).

9
 No. 2012AP580.awb

that the provisions of the Worker's Compensation Act "leave no

doubt that the legislature intended to preserve the right to

maintain an action in tort against any person, other than the

employer, who is responsible for the acts causing injury to a

workman." Id. at 48.

¶109 After the 1931 amendment to the Worker's Compensation

Act, courts continued to recognize that it did not impair an

employee's common law right to maintain a tort action against a

third party tortfeasor:

The fact that sec. 102.29, Stats., appears in the
chapter entitled "Workmen's Compensation" does not
change the character of the action brought against a
third party, which as we have said, is one at law
founded in tort. There is nothing in the Workmen's
Compensation Law which discloses a legislative purpose
of creating a new remedy for an injury to an employee
caused by the negligent act of a third party. That
remedy existed at common law and was neither enlarged
nor impaired by enactment of sec. 102.29.
Severin, 271 Wis. at 383; see also Employers Mut. Liability Ins.

Co. v. De Bruin, 271 Wis. 412, 415, 73 N.W.2d 479 (1955) ("The

cause of action is one at common law; the fact that it is
recognized in a section of the Workmen's Compensation Law does

not change the fact that [the tortfeasor's] liability is based

upon his wrongful acts.").

¶110 The court expressed similar sentiments in McGonigle

v. Gryphan, 201 Wis. 269, 272, 229 N.W. 81 (1930) ("[I]t is

clear from a consideration of the whole act that it did not

affect rights of action which existed under the common law in

any cases except those in which the parties involved sustained
toward each other the relationship of employer and employee.").

10
 No. 2012AP580.awb

¶111 Wisconsin is not alone in interpreting its worker's

compensation law as preserving the common law right of an

employee to sue a third party tortfeasor. Other states have

likewise determined that their worker's compensation laws do not

abrogate the common law right to maintain an action against a

third party tortfeasor. See, e.g., Runcorn v. Shearer Lumber

Prods., 690 P.2d 324, 328 (Idaho 1984) ("the workmen's

compensation law does not disturb the injured employee's right

to sue a third party for 'legal liability to pay damages'");

County of San Diego v. Sanfax Corp., 568 P.2d 363, 367-68 (Cal.

1977) ("The workers compensation statutes governing employer and

employee actions against third parties do not define the

substantive law which determines whether an employee or an

employer will in fact recover. Instead, the substantive law

which governs . . . is usually the general tort law."); St.

Paul Fire & Marine Ins. Co. v. Wood, 416 S.W.2d 322, 327 (Ark.

1967) ("[The worker's compensation law] recognizes the

employee's common law tort action against third persons.");
Keener Oil & Gas Co. v. Bushong, 56 P.2d 819, 821 (Okla. 1936)

("There is nothing whatever in the [Worker's Compensation] act

under which it may be claimed there was a purpose or attempt to

limit, modify, or cancel the common-law liability of a third

party for his tortious injury of a workman.").

C. Language of the Statute

¶112 This precedent is consistent with the plain language

of the statute. It expressly provides that the making of a
claim for compensation against an employer shall not affect the

11
 No. 2012AP580.awb

right of an employee to make a claim or maintain an action in

tort against any other party. Wis. Stat. § 102.29(1)(a).

¶113 The statute states:

(a) The making of a claim for compensation against an
employer or compensation insurer for the injury
or death of an employee shall not affect the
right of the employee, the employee's personal
representative, or other person entitled to bring
action to make claim or maintain an action in
tort against any other party for such injury or
death, hereinafter referred to as a 3rd party.
. . .

(b) . . . Each shall have an equal voice in the
prosecution of the claim, and any disputes
arising shall be passed upon by the court before
whom the case is pending . . . .
Wis. Stat. § 102.29(1) (emphasis supplied).

¶114 Wisconsin Stat. § 102.29(1) should not be read as an

abrogation of the common law right to a jury trial. As

discussed above, statutes are not to be read as derogating the

common law unless the legislative purpose to do so is clearly

expressed in the language of the statute. Maxey, 94 Wis. 2d at

399. Such "legislative intent to change the common law must be

expressed 'beyond any reasonable doubt.'" Kranzush v. Badger

State Mut. Cas. Co., 103 Wis. 2d 56, 74, 307 N.W.2d 256 (1981)

(citing Grube v. Moths, 56 Wis. 2d 424, 437, 202 N.W.2d 261

(1972); Burke v. Milwaukee & Suburban Transport Corp., 39 Wis.

2d 682, 690, 159 N.W.2d 700 (1968)). Thus, to accomplish a

change in the common law, "the language [of the statute] must be

clear, unambiguous, and peremptory." Maxey, 94 Wis. 2d at 399.

¶115 Although the juxtaposition of the phrase "any disputes
arising shall be passed upon by the court," in subsection (1)(b)

12
 No. 2012AP580.awb

with the above emphasized language in subsection (1)(a) may give

rise to some uncertainty as to its meaning, it most certainly is

not "clear, unambiguous, and peremptory," in limiting the

longstanding right of an employee to a jury trial for injuries

caused by a third party tortfeasor. Wisconsin Stat.

§ 102.29(1)(b) may give a court the ability to pass upon other

disputes that arise during the prosecution of a case. However,

it does not——beyond a reasonable doubt——permit a court to compel

an employee to settle a claim against a third party tortfeasor,

thereby forcing surrender of the employee's right to a jury

trial. To the extent that Dalka v. Am. Family Mut. Ins. Co.,

2011 WI App 90, 334 Wis. 2d 686, 799 N.W.2d 923, suggested

otherwise, I conclude that it was in error.

¶116 Dalka involved an $8,500 settlement offer to the

plaintiff where there were consolidated cases with different

parties, multiple accidents, and disputes over the origin of the

injury. In its 12-paragraph decision, the court of appeals

determined that a court could force an employee to settle its
third party worker's compensation claims. It based its analysis

on Bergren v. Staples, 263 Wis. 477, 483-84, 57 N.W.2d 714

(1953). Dalka, 334 Wis. 2d 686, ¶10.

¶117 However, Bergren was decided in the context of an

employee who was trying to force an employer to settle. As

Bergren noted, unlike employees, employers do not have a common

law right to an employee's claim for negligence against a third

party. 263 Wis. at 482. The Dalka court failed to appreciate
this distinction. Consequently, it did not conduct a thorough

13
 No. 2012AP580.awb

analysis of the issue and is inconsistent with the history, case

law, and express language of the statute discussed above.

¶118 In sum, the history and longstanding precedent,

together with persuasive cases from other jurisdictions, as well

as the language of the Worker's Compensation Act lead to the

conclusion that an employee's common law cause of action against

a third party tortfeasor was not abrogated by the Worker's

Compensation Act. Because an employee's common law cause of

action against a third party tortfeasor preexisted the Wisconsin

Constitution and continues to this day, the Wisconsin

Constitution requires that the right to a jury trial apply to

such a claim. Thus, contrary to the majority, I conclude that

there is a right to a jury trial for a common law cause of

action brought by an employee against a third party tortfeasor.

II

¶119 The majority compounds its problematic analysis by

failing to give any meaningful guidance on what standards or

procedures should be applied in implementing its erroneous
conclusion.

¶120 Here, after the League of Wisconsin Municipalities

Mutual Insurance Company moved to compel settlement, Adams

requested the opportunity to present evidence in support of his

opposition to the motion. He specifically identified witnesses

he would present in support of his argument that the case had

more value than the settlement offer. The circuit court denied

this request and made its determination to compel settlement

14
 No. 2012AP580.awb

based on evidence previously entered in support of a summary

judgment motion.

¶121 Prior to its ruling, the circuit court made a clear

request for guidance on what standard to apply to determine

whether to grant a motion to compel a settlement. It noted the

worker's compensation statute did not indicate any procedure for

it to follow in deciding disputes between parties:

First of all, I want to say that the legislature
hasn't given a great deal of guidance with respect to
how the court should deal with these matters. The
legislature has directed that where there is a dispute
between two parties on how the case should be
conducted and whether offers of settlement should be
accepted, the statute imposes the duty to sort that
out upon the court. But there's no – there's nothing
that's been determined about how the court goes about
that.
There is a good reason, however, why no guidance is set forth in

the statute on what standards or procedures to employ when

considering a motion to compel an employee to settle. As

discussed above, such a motion which would deprive the employee

of the right to a jury trial would be an anathema to the
history, a century of precedent, and the express language of the

statute.

¶122 The circuit court also noted a similar absence of

guidance from the courts:

And the only case that deals with this, which is only
a few months ago, it was unfortunately a case where
the amount in dispute was only about $8,700 and where
the judge – trial court apparently dealt with it in a

15
 No. 2012AP580.awb

rather cavalier fashion, and that doesn't give a great
deal of guidance.5
¶123 I agree with the circuit court that the legislation

and the caselaw offer little guidance on how to make these

determinations. The statute merely states that "any disputes

arising shall be passed upon by the court before whom the case

is pending." Wis. Stat. § 102.29(1). Likewise, the sole case

permitting a court to compel settlement noted only that the

circuit court had determined that settlement was in the

employee's best interest. Dalka, 334 Wis. 2d 686. It did not

elaborate on what standard a circuit court should apply in

making that decision and what evidence it should consider. Id.,

¶3.

¶124 The standard set forth by the majority today provides

even less guidance. It opines with scant explanation that

"fairness" is a better standard than "best interest." Majority

op., ¶72. Although the majority observes the three standards

employed by the federal court when approving class action

settlements (fairness, reasonableness, and adequacy), it chooses

just one without apparent rhyme or reason. Id. The majority

mandates that the standard a circuit court should employ when

deciding whether to compel a party to accept settlement is one

that evaluates whether the settlement is "fair." Id. Such a

solo standard provides no standard at all.

5
The case to which the circuit court was referring was
Dalka v. Am. Family Mut. Ins. Co., 2011 WI App 90, 334 Wis. 2d
686, 799 N.W.2d 923.

16
 No. 2012AP580.awb

¶125 Likewise, the majority offers little guidance on what

process a circuit court is to use when making the determination

of whether to grant a motion to compel settlement. Rather than

stating what the procedure should be, the majority focuses on

the procedure suggested by Adams, stating that a "mini-trial" is

"unworkable." Id., ¶77.

¶126 The majority fails to acknowledge that in similar

circumstances, this court has adopted a mini-trial to assess the

value of a settlement. In Rimes v. State Farm Mut. Automobile

Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), the court

considered what procedure should be used to determine whether a

settlement between a plaintiff and a tortfeasor made the

plaintiff whole such that a subrogated insurer could share in

the recovery. It concluded that a mini-trial conducted by the

circuit court was appropriate. Id. at 276-77. Since then,

Rimes hearings have become the norm for determining whether a

plaintiff has been made whole by a settlement. Schulte v.

Frazin, 176 Wis. 2d 622, 629, 500 N.W.2d 305 (1993).
¶127 The two cases cited by the majority show that

evidentiary hearings are also used by federal district courts in

determining whether to approve class action settlements under

Fed. Rule Civ. Pro. 23(e).6 See Young v. Katz, 447 F.2d 431,
6
Federal Rule Civ. Pro. 23(e) provides:

The claims, issues, or defenses of a certified class
may be settled, voluntarily dismissed, or compromised
only with the court's approval. The following
procedures apply to a proposed settlement, voluntary
dismissal, or compromise:

. . .
17
 No. 2012AP580.awb

434-35 (5th Cir. 1971) (noting that the plaintiffs presented

witness testimony and that the evidence presented by the

objectors raised nothing of substance to contradict it); Parker

v. Anderson, 667 F.2d 1204, 1210 (5th Cir. 1982) (noting the

objectors' failure to introduce any evidence at the settlement

hearing). The majority does not explain why Wisconsin circuit

courts are unable to manage the same procedure as well as the

federal courts.

¶128 Although the contours of the procedure the majority

sets forth for the circuit courts are unclear, the inadequacy of

its loose guidelines are illustrated by their application in

this case. Here, the majority determines that it was

permissible for the circuit court to compel settlement based

solely on the evidence already before it. Adams' claim was

terminated without him being able to present evidence in

opposition to the motion to compel settlement. Such a procedure

calls into question whether the court had an adequate basis for

determining that the settlement was fair and raises due process
concerns.

¶129 The majority is obligated to provide the circuit court

and litigants with some direction on how a circuit court is to

make a determination to compel settlement. Its standard of

"fairness" is no standard at all. Absent any indication of what

evidence the court is to consider and how that evidence is to

(2) If the proposal would bind class members, the
court may approve it only after a hearing and on
finding that it is fair, reasonable, and adequate.

18
 No. 2012AP580.awb

get before the court, the majority opinion shirks its

responsibility.

III

¶130 In sum, the majority's approach to the right to a

jury trial is misguided as it overlooks history, sub silencio

overrules decades of cases, and ignores the words of the statute

by assuming that an employee's right to pursue a cause of action

against a third party tortfeasor comes from Wis. Stat.

§ 102.29(1), and not the common law. Under its precarious

analysis the majority determines there is no right to a jury

trial, and concludes that a circuit court may compel an employee

to settle its claims.

¶131 Contrary to the majority, I conclude that the

employee's common law cause of action against a third party

tortfeasor was not abrogated by the Worker's Compensation Act.

Because an employee's common law cause of action against a third

party tortfeasor preexisted the Wisconsin Constitution and

continues to this day, the Wisconsin Constitution requires that
the right to a jury trial apply to such a claim. Accordingly,

I conclude that the court cannot compel settlement here, and I

respectfully dissent.

¶132 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

19
 No. 2012AP580.awb

1