Claims Litigation. Dennis Tweedale Chief Executive Officer League of Wisconsin Municipalities Mutual Insurance

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1 Claims Litigation How did we get here? Dennis Tweedale Chief Executive Officer League of Wisconsin Municipalities Mutual Insurance Anthony Conlin Senior Claims Attorney Statewide Services/Rural Mutual Insurance Company 1

2 Types of Claims Auto Accidents Community Development RLUIPA Big Box Stores Annexation/Zoning Tax Disputes Zoning Disputes Religious Land Use and Institutionalized Persons Act of 2000 ( RLUIPA ) Types of Issues: Use of property for a church Height of a church steeple Lighting Ringing of bells Two main concerns: The importance of the free exercise of religion as presented by the variance request The importance of the municipality s reasons for enacting the zoning code provision 2

3 Legal Standard: Municipality is prohibited from imposing or implementing local land use regulations that place a substantial burden on religious exercise. Municipality must employ balancing test in evaluating whether: 1.) Enforcement of zoning ordinance presents compelling governmental interest 2.) Whether strict enforcement is the least restrictive means of furthering that interest 3.) Is there a less restrictive way for municipality to protect its compelling interest rather than strict enforcement of ordinance Burden of Proof Once applicant makes prima facie case in support of substantial burden, the burden shifts to the municipality to show how its enforcement is more important than the religious interest. Village must prove its interest outweighs the church s If competing interests are a tie, the variance should be granted 3

4 Additional Concerns In initial wave of cases, enforcement strongly favored religious entities More recently, Courts have reeled in this broad interpretation In Civil Liberties for Urban Believers v. City of Chicago, 7 th Circuit held that term substantial burden recognized a meaningful distinction between slight obstacles and/or minor burdens and those that necessarily bear[] direct, primary and fundamental responsibility for rendering religious exercise including the use of real property for the purpose thereof within the regulated jurisdiction generally effectively impracticable. Effect of capitulation on future zoning disputes: was there actual showing of substantial burden. Other Zoning/Ordinance Disputes Annexation for Business Purposes Expansion of Industrial Park Sand Mining Big Box Store Developments Often fought based on change in zoning Disputed via environmental concerns (surface water run off) Passage of Ordinances regarding Sex Offender Residency 4

5 Municipal Motor Vehicle Accidents Brown v. Acuity Volunteer firefighter driving truck to fire station in response to emergency call Came to red stop signal on four lane highway, crossed to median, then tried to cross next set of lanes and struck vehicle Truck had light but no siren Municipal Motor Vehicle Accidents cont. Brown v. Acuity cont. Wis Stat : emergency vehicle may proceed past red light only if giving visual signal and giving audible signal, defined as siren or exhaust whistle Supreme Court Holding: Firefighter acted contrary to ministerial duty imposed by Wis Stat , thus no immunity. 5

6 Municipal Motor Vehicle Accidents cont. Legue v. City of Racine Squad car responding to emergency, proceeded through red light after slowing below posted speed limit, activating lights and siren. Jury found that officer s negligence caused accident and injuries Supreme Court Holding: No immunity. Compliance with requirements does not relieve operator from duty to drive with due regard for safety of others. Internal policies and procedures of police dept. did not relieve members from duty to drive with due regard under the circumstances for the safety of others. Municipal Motor Vehicle Accidents cont. Holman v. Harvey Grader scraping ice from town road. Backed up at intersection, was struck by oncoming minivan Trial Court granted summary judgment Court of Appeals affirmed Wis Stat regarding no backing unless such movement can be made without reasonable safety does not create ministerial duty Wis Stat (1) regarding yielding the right of way does not create ministerial duty Statutes both required driver to exercise discretion, thus entitled to immunity. Supreme Court accepted review Matter was settled based on likely result 6

7 Tax Disputes Retail Chain Store Disputes Walgreens Department Stores Large Manufacturing Businesses in Small Communities Lands End Paper Mills Insurance Coverage: Defense Cost Coverage 7

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