                                                             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 App. 2013 – Unpublished)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
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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



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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.

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                                                                 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:

          . . .
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                                                                    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.

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                                                                      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.




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