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Hess v. Fernandez2/25/2005
ter, ___ Wis. 2d ___, . Thus, with an unambiguous statute, we need not consult any extrinsic sources. Id. (citing Kalal, 271 Wis. 2d 633, ).
. In addressing Wis. Stat. § 51.61, the circuit court held that claims for costs and reasonable actual attorney fees can apply to the Fund. For support, it looked to the court of appeals' decision in Wright v. Mercy Hospital, 206 Wis. 2d 449, 557 N.W.2d 846 (Ct. App. 1996). There, a patient brought suit against a nurse, hospital, and the hospital's insurer, after a nurse at the hospital developed a sexual relationship with the patient. The nurse and the insurer settled, but the court of appeals determined that the patient was entitled to costs and reasonable actual attorney fees from the hospital under § 51.61. The court of appeals allowed an award under a § 51.61 claim, even though the hospital was a corporation. The circuit court here held that the result in the Wright case gave tacit support to the statute's applicability to the Fund in this case.
. We disagree with the circuit court's interpretation and its application of Wis. Stat. § 51.61 to the Fund. The Fund is clearly not a person "who violates the right in question," as § 51.61 requires. The Fund does not provide any treatment and could never violate any of the rights proscribed in § 51.61. As a result, there is no basis to conclude that it is subject to costs and reasonable actual attorney fees.
. In so holding, we must clarify the court of appeals' decision in Wright, even though the chief holding in that case can be distinguished. While the hospital implied that no Wis. Stat. § 51.61 claims could apply to it or its insurer because they were corporations, that issue was not addressed by the court because the argument was not developed. Wright, 206 Wis. 2d at 449. The court of appeals also did not consider, in Wright, the issue of Wis. Stat. ch. 655 exclusivity. The court of appeals should have put much greater emphasis on the relationship between the contingent fee agreement and the claim for costs and reasonable actual attorney fees. When applying the balancing test, such a factor should be carefully considered.
. As previously noted, the liability of the Fund does not extend to Wis. Stat. § 51.61(7)(a), since the Fund is not a person under the plain language of that statutory section. Since we have determined that the Fund does not come within the plain language of § 51.61(7)(a), we need not determine whether the Fund's arguments concerning "damages" and the exclusivity of Wis. Stat. ch. 655 to the Fund are correct. It is enough for our purposes here that we find that the Fund is not a person within the meaning of § 51.61(7)(a) and, therefore, not subject to the provisions relating to costs and reasonable actual attorney fees.
. Because we determine that the motion to amend was erroneously granted and that Fernandez and the Fund are not subject to an award of costs and reasonable actual attorney fees, we need not address the question of interest on such an award.
IV.
. In sum, we conclude that the circuit court erroneously exercised its discretion by granting the motion to amend the pleadings to include Hess's new claim. In doing so, we determine that there was no express or implied consent by Fernandez or the Fund to try the issues raised by the Wis. Stat. § 51.61 claim, and that the circuit court did not properly apply the balancing test when it allowed the amendment of the pleadings. Additionally, we hold that, irrespective of the amendment, the Fund cannot be liable for costs and reasonable actual attorney fees under § 51.61(7)(a). The Fund is not a "person," and therefore is incapable of violating any rights of a
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