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Cattau v. National Insurance Services of Wisconsin, Inc.
Supreme Court of Wisconsin
April 30, 2019
Ann Cattau, Thomas M. Beck, Linda Beckwith, Ardyth Bergstrom, Vicki Christman, Gail W. Cismoski, Kathleen A. Curtis, Janice DeMenter, John Dobbins, Elsie Evenson, Kris Grasley, Gary Haffeman, Kristine Haffeman, Kathy J. Hager, Gail Harrmann, Joann Harrell, Mary Louise Hildebrandt, Lexann Hitchcock, Jo Anne Holden, Karla M. Huston, Susan R. Johnson, Mary K. Jones, Dorothi A. Karisny, Chuck Knoeck, Lawrence H. Krebs, Diane D. Krueger, Helen L. Kurka, Judith J. Kurka Nagel, James Lantz, Jane E. Lantz, Thomas Marzahl, Mary Joy Mayer, Marjorie R. Murphy, Bruce C. Nufer, Anna P. Olson, Sharon O'Reilly, Patricia Ormston, Mark Peerenboom, Sue Peterson, James S. Piepenbrink, Anna Mae Prem, Jane Reimer, Mary J. Resch, Cynthia A. Rieck, Dianne Roth, Lucy Rumpf, Susan M. Schug, David K. Sebora, Suann M. Senso, Karla Sheehan, Sandra L. Smith, Robin L. Snell, Mary C. Tieman, Teresa D. Walotka, Patricia M. Waskawic, Mindy Weichmann, Susan Westphal, Vicki Wippich, Christine Wollerman, James A. Zipple and Levern J. Zwirchitz, Plaintiffs-Appellants-Petitioners, James Shipman, Plaintiff,
National Insurance Services of Wisconsin, Inc. and MidAmerica Administrative & Retirement Solutions, Inc., Defendants-Respondents, Neenah Joint School District and Community Insurance Corporation, Intervenors-Respondents.
Submitted on Briefs: Oral Argument: March 18, 2 019
OF DECISION OF THE COURT OF APPEALS Reported at 383 Wis.2d
600, 918 N.W.2d 127
Circuit Court Winnebago county (L.C. No. 2013CV1149) John A.
Jorgensen Judge. REVIEW of a decision of the Court of
the plaintiffs-appellants-petitioners, there was a brief
filed by Charles J. Hertel, Heath G. Mynsberge, and Dempsey
Law Firm, . LLP, Oshkosh. There was an oral argument by Heath
the defendants-respondents, there was a brief filed by Joseph
L. Olson, Mark A. Lotito, and Michael Best & Friedrich
LLP, Milwaukee. There was an oral argument by Joseph L.
the intervenor-respondent Community Insurance Corporation,
there was a brief filed by Lori M. Lubinsky, Michael D. Hahn,
and Axley Brynelson, LLP, Madison.
the intervenor-respondent Neenah Joint School District, there
was a brief filed by Ronald Stadler, Jonnathan Sacks, and
Mallery & Zimmerman, s.c, Milwaukee.
We review an unpublished decision of the court of
appeals affirming an order of the circuit court
that dismissed plaintiffs' claims. Plaintiffs, a
group of 61 retired Neenah teachers and administrators, sued
MidAmerica Administrative & Retirement Solutions, Inc.
(MidAmerica) and National Insurance Services of Wisconsin,
Inc. (NIS). MidAmerica and NIS moved to dismiss for failure
to state a claim upon which relief may be granted. The
plaintiffs attempted to plead breach of fiduciary duty,
negligent misrepresentation, strict responsibility
misrepresentation, and negligence, all arising from
MidAmerica and NIS's alleged mismanagement of their
The court of appeals affirmed the circuit court's
dismissal of plaintiffs' claims against MidAmerica and
NIS. The court of appeals held that our decision in Data
Key Partners v. Permira Advisers LLC, 2014 WI 86, 356
Wis.2d 665, 849 N.W.2d 693, created a new, heightened
pleading standard in Wisconsin, and that under this new
standard, plaintiffs had failed to state a claim upon which
relief may be granted.
We granted review and unanimously conclude that our decision
in Data Key did not change Wisconsin's pleading
standard as previously articulated in Strid v.
Converse, 111 Wis.2d 418, 422-23, 331 N.W.2d 350 (1983)
. Accordingly, we reverse the decision of the court of
appeals in this regard. However, notwithstanding that
unanimous conclusion, we are equally divided as to whether
the plaintiffs have stated a claim upon which relief may be
granted against MidAmerica or NIS based on the Data
Key/Strid standard. Therefore, the decision of the court
of appeals is affirmed by an equally divided court.
Wingra Redi-Mix, Inc. v. Burial Sites Pres. Bd.,
2018 WI 54, ¶1, 381 Wis.2d 601, 912 N.W. 392.
To explain further, the pleading standard we set out in
Data Key is consistent with the pleading standard in
Strid, and is grounded in Wis.Stat. § 802.02
(1) (a)' s (2017-18) requirement that a complaint contain
"[a] short and plain statement of the claim, identifying
the transaction or occurrence or series of transactions or
occurrences out of which the claim arises and showing that
the pleader is entitled to relief." When determining
whether a complaint states a claim upon which relief may be
granted, courts must "accept as true all facts
well-pleaded in the complaint and the reasonable inferences
therefrom." Data Key, 356 Wis.2d 665, ¶19
(citation omitted). "If the facts reveal an apparent
right to recover under any legal theory, they are sufficient
as a cause of action." Strid, 111 Wis.2d at 423
While courts must accept all well-pleaded facts as true,
courts cannot add facts to a complaint, and do not accept as
true legal conclusions that are stated in the complaint.
Data Key, 356 Wis.2d 665, ¶19. For this reason,
"a formulaic recitation of the elements of a cause of
action" is not enough to state a claim upon which relief
may be granted. Id., ¶25.
"[T]he sufficiency of a complaint depends on substantive
law that underlies the claim made because it is the
substantive law that drives what facts must be pled."
Id., ¶31. If proof of the well-pleaded facts in
a complaint would satisfy each element of a cause of action,
then the complaint has stated a claim upon which relief may
be granted. Id., ¶21; see also Strid,
111 Wis.2d at 422-23 ("It is the sufficiency of ...