Andrea Townsend v. ChartSwap, LLC ( 2021 )

2021 WI 86SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP2034
COMPLETE TITLE: Andrea Townsend,
Plaintiff-Appellant,
v.
ChartSwap, LLC,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 229,952 N.W.2d 831PDC No:2021 WI App 79 - Published
OPINION FILED: November 26, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 29, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Paul R. Van Grunsven
JUSTICES:
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined, and in which ANN WALSH BRADLEY, DALLET, and KAROFSKY,
JJ., joined, except for ¶¶17 and 23-26. DALLET, J., filed a
concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY,
JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Thomas L. Shriner, Jr., Andrew J. Wronski, Philip C.
Babler, Anne-Louise T. Mittal, and Foley & Lardner LLP, Milwaukee.
There was an oral argument by Thomas L. Shriner, Jr.
For the plaintiff-appellant, there was a brief filed by Robert
J. Welcenbach and Welcenbach Law Offices, S.C., Milwaukee; with
whom on the brief was Scott C. Borison and Legg Law Firm LLC,
Baltimore, Maryland; with whom on the brief was Jon Craig Jones
and Jones & Hill, LLC, Oakdale, Louisiana. There was an oral
argument by Scott C. Borison.
An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by Brett A. Eckstein and Cannon & Dunphy,
S.C., Brookfield.
2
2021 WI 86NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP2034
(L.C. No. 2018CV9938)
STATE OF WISCONSIN : IN SUPREME COURT
Andrea Townsend,
Plaintiff-Appellant,
FILED
v. NOV 26, 2021
Sheila T. Reiff
ChartSwap, LLC, Clerk of Supreme Court
Defendant-Respondent-Petitioner.
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined, and in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ.,
joined, except for ¶¶17 and 23-26. DALLET, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
REVIEW of the decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review the court of
appeals' decision1 reversing the circuit court's2 dismissal of
Andrea Townsend's claim against ChartSwap, LLC ("ChartSwap") for
1Townsend v. ChartSwap, LLC, 2020 WI App 79, 395 Wis. 2d 229,
952 N.W.2d 831.
2The Honorable Paul R. Van Grunsven of Milwaukee County
Circuit Court presided.
No. 2019AP2034
unlawfully overcharging her for copies of her medical records in
contravention of the fee restrictions set out in Wis. Stat.
§ 146.83(3f) (2017-18).3 On appeal, ChartSwap urges us to reverse
the court of appeals, arguing that the statutory fee restrictions
do not apply to it because it is not a health care provider, which
is statutorily defined, and because principles of agency law do
not impose personal liability on it for the fees it charged.
¶2 We conclude that, under a plain meaning interpretation
of Wis. Stat. § 146.81(1), ChartSwap is not a health care provider;
and, therefore, it is not subject to the fee restrictions in Wis.
Stat. § 146.83(3f)(b), which regulate health care providers.
Additionally, we conclude that neither common law principles of
agency nor the plain meaning of Wis. Stat. § 990.001(9) supports
the conclusion that an agent is personally liable for charging
more for health care records than the statute permits its principal
to charge. Accordingly, we reverse the decision of the court of
appeals.
3 All references to the Wisconsin Statutes are to the 2017-
18 version unless otherwise noted.
2
No. 2019AP2034
I. BACKGROUND
A. Factual History4
¶3 On August 2, 2016, Andrea Townsend ("Townsend") was
injured in a car crash. Townsend retained a law firm for her
personal injuries, and the firm, with her written consent, sought
certified health care records and billings from Milwaukee
Radiologists, which was involved in her care.
¶4 Following her attorney's request, ChartSwap replied on
behalf of Milwaukee Radiologists and provided a one page certified
health care record to Townsend, for which it charged $35.87.
Townsend's attorneys paid the bill. Townsend then asserted claims
against ChartSwap for negligent or intentional violation of the
fee structure dictated for health care providers in Wis. Stat.
§ 146.83(3f)(b) and a claim for unjust enrichment.5 Townsend also
4 This case presents in the context of a motion to dismiss.
Therefore, facts are drawn from the complaint and taken as true
and undisputed for purposes of the motion. Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d 665, 849 N.W.2d
693.
5 In pleading "UNJUST ENRICHMENT," Townsend incorporated by
reference all allegations about ChartSwap's charging more for the
copy of her medical record than Townsend asserts ChartSwap lawfully
could charge under Wis. Stat. § 146.83(3f)(b). Complaint ¶60.
Townsend alleged that ChartSwap knew its charges were unlawful,
and that it appreciated and received a benefit of the illegal
charges that was inequitable. Id., ¶¶61-63. All of her
allegations require that ChartSwap's charge for medical records
were controlled by § 146.83(3f)(b), were in excess of the
statutorily stated charges, and therefore were unlawful. As we
explain fully below, her contentions are legally incorrect.
Before us Townsend asserts, "The Complaint sets forth facts
and a cause of action in which it alleges that Milwaukee
Radiologists was not entitled to charge these fees, that
Chart[S]wap . . . acted as the agent of Milwaukee Radiologists and
3
No. 2019AP2034
alleged that ChartSwap had collected fees as the agent for and on
behalf of Milwaukee Radiologists.
B. Procedural History
¶5 In the circuit court, ChartSwap moved to dismiss the
complaint for failure to state a claim upon which relief can be
granted. ChartSwap alleged that Wis. Stat. § 146.83(3f)(b)
applies only to "health care providers" and that Townsend's
complaint did not allege that ChartSwap was a health care provider
within the statutory definition of that term. Moreover, ChartSwap,
after initially disputing that it was the agent of Milwaukee
Radiologists, argued that even if it were its agent, ChartSwap was
not personally liable under Wisconsin common law principles of
agency.
¶6 The circuit court granted ChartSwap's motion to dismiss.
It relied on the plain language of Wis. Stat. § 146.83(3f)(b) to
determine that the fee restrictions applied only to health care
providers. Therefore, because the complaint failed to allege that
ChartSwap was a health care provider, it failed to state a claim
that Chart[S]wap illegally charged and obtained the money knowing
it was illegal and must return it." Reply Br., 34.
Townsend does not allege facts sufficient to support a claim
for unjust enrichment. Rather, she simply incorporates her
statutory violation claim in paragraph 60 and labels it unjust
enrichment. However, the type of claim is not determined by the
label a party gives to a pleading. Tikalsky v. Friedman, 2019 WI
56, ¶14, 386 Wis. 2d 757, 928 N.W.2d 502. It is the facts alleged
that matter. See Green Spring Farms v. Kersten, 136 Wis. 2d 304,
315, 401 N.W. 816 (1987). Here, no facts were alleged sufficient
to support a claim for unjust enrichment. See Puttkammer v. Minth,
83 Wis. 2d 686, 688-89, 266 N.W.2d 361 (1978).
4
No. 2019AP2034
upon which relief could be granted. Additionally, the circuit court
held that, regardless of whether ChartSwap was an agent for
Milwaukee Radiologists, the common law of agency in Wisconsin does
not impute a principal's liability for failing to comply with
§ 146.83(3f)(b) to an agent. The circuit court entered judgment
dismissing Townsend's complaint, and she appealed.
¶7 The court of appeals reversed, holding that, as an agent
of Milwaukee Radiologists under Wis. Stat. § 990.001(9), ChartSwap
was subject to the fee restrictions provided by Wis. Stat.
§ 146.83(3f)(b). The court of appeals held that, although
§ 146.83(3f)(b) applied only to health care providers, and
ChartSwap was not a health care provider as defined by statute,
the intent of the legislature and purpose of the statute——to
"protect patients from being charged excessive fees for access to
information in the custody and control of health care providers"—
—would be undermined if § 146.83(3f)(b) were not applied to
ChartSwap. Townsend v. ChartSwap, LLC, 2020 WI App 79, ¶¶8, 9,
13, 395 Wis. 2d 229, 952 N.W.2d 831.
¶8 In so concluding, the court of appeals interpreted Wis.
Stat. § 146.83(3f)(b) as follows:
[I]n conjunction with the remedial provision set forth
in Wis. Stat. § 146.84(1)(b), which explicitly imposes
liability upon 'any person . . . who violates [§]
146.83,' and Wis. Stat. § 990.001(9), which expressly
states that when construing legislative requirements
found in all statutes, the legislature's requirements
apply with equal force to the acts of agents.
Id., ¶10. The court of appeals reasoned that this conjunctive
interpretation guarded against the "absurd" result of allowing
5
No. 2019AP2034
health care providers to charge patients "more than the reasonable
copying and mailing costs if the providers hire others to perform
the task of supplying the records." Id., ¶14. Therefore, the court
of appeals concluded that § 146.83(3f)(b), when read together with
§ 146.84(1)(b) and § 990.001(9), required ChartSwap to adhere to
the fee restrictions in § 146.83(3f)(b).
¶9 We granted ChartSwap's petition for review.6 On review,
we determine: (1) whether Wis. Stat. § 146.83(3f)(b) applies its
fee restrictions to a person who is not within one of the
statutorily-defined categories of "health care providers" and
(2) whether Wis. Stat. § 990.001(9) requires that an agent be held
liable for charging more for health care records than
§ 146.83(3f)(b) directs.
6It should be noted that, prior to this court's granting the
petition for review, the United States Court of Appeals for the
Seventh Circuit decided a factually and legally analogous
case: Smith v. RecordQuest, LLC, 989 F.3d 513 (7th Cir. 2021).
Before ultimately reversing the district court out of deference to
the Wisconsin Court of Appeals' decision in the case at bar, the
Seventh Circuit raised some concerns such as the common law of
agency that binds a principal when its agent acts within the scope
of its agency and how agency principles fit within Wis. Stat.
§ 990.001(9). Id. at 519. In the court's estimation, those
concerns required meaningful engagement. See id. This decision
will provide that engagement.
6
No. 2019AP2034
II. DISCUSSION
A. Standard of Review
¶10 A motion to dismiss tests the legal sufficiency of the
complaint. Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67,
¶26, 393 Wis. 2d 38, 946 N.W.2d 35. Upon a motion to dismiss, we
accept as true all facts well-pleaded in the complaint and the
reasonable inferences therefrom. Kaloti Enters., Inc. v. Kellogg
Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205.
However, a court cannot add facts in the process of construing a
complaint. John Doe 1 v. Archdiocese of Milwaukee, 2005 WI 123,
¶19, 284 Wis. 2d 307, 700 N.W.2d 180. Moreover, "legal conclusions
asserted in a complaint are not accepted, and legal conclusions
are insufficient to withstand a motion to dismiss." Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d
665, 849 N.W.2d 693. Therefore, our focus is on factual
allegations made in the complaint. Serv. Emps. Int'l Union, Loc.
1, 393 Wis. 2d 38, ¶26. We determine whether the facts alleged
state a claim for relief, which is a legal question that we review
independently. Id.¶11 Additionally, this case involves questions of statutory
interpretation and application. Statutory interpretation and
application present questions of law that we independently review,
while benefitting from the decisions of the circuit court and the
court of appeals. Marder v. Bd. of Regents of the Univ. of Wis.
Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
7
No. 2019AP2034
B. Wisconsin Stat. §§ 146.83(3f)(b) and 146.84(1)(b)
¶12 The "purpose of statutory interpretation is to determine
what the statute means so that it may be given its full, proper,
and intended effect." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory
interpretation begins with the language of the statute. If the
meaning of the words are plain and unambiguous, a court's inquiry
ends and there is no need to consult extrinsic sources of
interpretation, such as legislative history. Id., ¶¶45, 46.
Statutory language is given its "common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." Id., ¶45 (citing Bruno v. Milwaukee Cnty., 2003 WI 28,
¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656).
¶13 In addition to the plain words of the text, "[c]ontext
is important to meaning. So, too, is the structure of the statute
in which the operative language appears." Kalal, 271 Wis. 2d 633,
¶46. Therefore, "statutory language is interpreted in the context
in which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results . . . [and] read where possible to give reasonable effect
to every word, in order to avoid surplusage." Id. When courts
interpret a statute, they are not at liberty "to disregard the
plain, clear words of the statute." Id.¶14 Turning to the statute at issue, Wis. Stat.
§ 146.83(3f)(b), it provides that when fulfilling a request by a
8
No. 2019AP2034
person for medical records, a health care provider may charge no
more than the total of all of the following that apply:
1. For paper copies: $1 per page for the first 25
pages; 75 cents per page for pages 26 to 50; 50 cents
per page for pages 51 to 100; and 30 cents per page for
pages 101 and above.
2. For microfiche or microfilm copies, $1.50 per
page.
3. For a print of an X-ray, $10 per image.
4. If the requester is not the patient or a person
authorized by the patient, for certification of copies,
a single $8 charge.
5. If the requester is not the patient or a person
authorized by the patient, a single retrieval fee of $20
for all copies requested.
6. Actual shipping costs and any applicable taxes.
§ 146.83(3f)(b). By the terms of the statute itself, these
restrictions apply only to health care providers, a term which is
defined in an adjacent statutory provision. See Wis. Stat.
§ 146.81(1).7 Here, neither the parties nor the court of appeals
contend that ChartSwap is a health care provider, as defined by
§ 146.81(1).8
¶15 Instead, in order to hold ChartSwap liable, despite not
being defined as a health care provider, the court of appeals cited
a third statutory section, Wis. Stat. § 146.84(1)(b), which
7See Wis. Stat. § 146.81(1) ("'Health care provider' means
any of the following: (a) A nurse licensed under ch. 441. (b) A
chiropractor licensed under ch. 446. (c) A dentist licensed under
ch. 447. . . . . (s) An emergency medical responder, as defined in
[§ ] 256.01(4p).").
8 See Townsend, 395 Wis. 2d 229, ¶8.
9
No. 2019AP2034
imposes "liability upon 'any person . . . who violates [Wis. Stat.
§] 146.83.'" Townsend, 395 Wis. 2d 229, ¶10. The court of appeals
reasoned that, rather than focusing on a definition of "health care
provider," the context and structure of the statute, as well as
the legislature's decision to impose liability on "any person,"
should control whether ChartSwap is liable for charging more than
§ 146.83(3f)(b) permits. Id.
¶16 We agree that the context of a statutory scheme is
important to the plain meaning of the text. Statutes are to be
construed and harmonized with one another when possible. Pruitt
v. State, 16 Wis. 2d 169, 173, 114 N.W.2d 148 (1962). Here, there
are two statutes that speak to providing health care records under
Wis. Stat. § 146.83(3f)(b): Wis. Stat. § 146.84(1)(b) and
§ 146.83(3f)(b). Section 146.84(1)(b) provides that "[a]ny
person" may be held liable for knowingly and willfully violating
the provisions of § 146.83. However, the text of § 146.83(3f)(b)
regulates only those charges made by health care providers.
Therefore, if a health care provider charged more than the fees
permissible under § 146.83(3f)(b), it would fall within the
parameters of both § 146.84(1)(b) and § 146.83(3f)(b). Because
ChartSwap is not a health care provider, its provision of health
care records does not satisfy both statutes.
¶17 Stated otherwise, Wis. Stat. § 146.83(3f)(b) regulates
charges that a health care provider may require for health care
records, and Wis. Stat. § 146.84(1)(b) refers back to § 146.83,
generally, with a directive to "any person" that damages may follow
if the provisions of § 146.83 are not followed. Section
10
No. 2019AP2034
146.83(3f)(b) is the more specific of the two statutes in regard
to charges for health care records. However, the court of appeals
concluded that § 146.84 directed its decision, rather than relying
on the plain meaning of § 146.83(3f)(b). Townsend, 395 Wis. 2d
229, ¶10. We come to a different conclusion based on the plain
meaning of § 146.83(3f)(b). Our conclusion also is supported by
a canon of statutory interpretation, whose potential application
is explained more fully below.
¶18 Furthermore, although the text of Wis. Stat.
§ 146.84(1)(b) refers to "any person," it is not an enforcement
mechanism solely for Wis. Stat. § 146.83. It also relates to
violations of other statutes. For example, § 146.84(1)(b) applies
to Wis. Stat. § 146.82(1), which provides that "All patient health
care records shall remain confidential." Section 146.82(1) is not
at issue in this matter.
¶19 In addition, limiting the fee restrictions in Wis. Stat.
§ 146.83(3f)(b) to statutorily-defined health care providers does
not create absurd results. In her brief, Townsend invited this
court to consider the following scenarios: under the definitional
limitation, if a patient were to request health care records from
a hospital and the hospital supplied the records itself, the
patient would not be charged extra fees. However, if the hospital
outsourced responding to the request for health care records, such
as occurred with ChartSwap, the patient would be charged an extra
fee. Townsend's juxtaposition purports to show the absurdity and
unfairness of the situation, as well as a potential loophole for
11
No. 2019AP2034
health care providers. However, her scenarios are not persuasive
for at least two reasons.
¶20 First, it is not absurd for the legislature to make
policy decisions regarding the applicability of statutes to
different constituents. At some point, there will be a cutoff.
This is a policy choice that legislatures frequently make, and
policy choices are left to legislative discretion. See Milwaukee
J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶37, 341 Wis. 2d
607, 815 N.W.2d 367 ("Policy decisions are left to the
legislature."); Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718, 1725 (2017) ("Legislation is, after all, the art of
compromise, the limitations expressed in statutory terms often the
price of passage . . . .").
¶21 Second, the perceived unfairness of Townsend's scenarios
likely have another remedy, which was raised at oral argument. In
this case, Townsend asserted that ChartSwap was the agent of
Milwaukee Radiologists.9 Milwaukee Radiologists is a health care
provider under the statutory definition. Therefore, if Chartswap
was the agent of Milwaukee Radiologists when it provided Townsend's
health care records, as has been alleged, Chartswap's actions are
Milwaukee Radiologists' actions. See Restatement (Third) of
Agency is a common law concept based upon certain factual
9
situations. Cochran v. Allyn, 16 Wis. 2d 20, 23, 113 N.W.2d 538(1962). However, whether the facts fulfill the legal standard for
agency is a question of law. Brown v. Sandeen Agency, Inc., 2009
WI App 11, ¶18, 316 Wis. 2d 253, 762 N.W.2d 850 (citing B.C.
Ziegler & Co. v. Ehren, 141 Wis. 2d 19, 26, 414 N.W.2d 48 (Ct.
App. 1987)).
12
No. 2019AP2034
Agency § 7.03(1) (2006) (explaining that a principal is subject to
liability to a third party when its agent acts with authority and
in contravention of the principal's legal obligation). However,
whether an agency relationship existed between Milwaukee
Radiologists and ChartSwap is not an issue that was presented to
us for decision as we review ChartSwap's motion to dismiss; and
accordingly, we do not decide it.
¶22 Finally, it bears repeating that statutory
interpretation begins with the language of the statute. If the
meaning of the words are plain and unambiguous, the court's inquiry
ends, and there is no need to consult extrinsic sources of
interpretation, such as legislative history. Kalal, 271 Wis. 2d
633, ¶¶45, 46.
¶23 The court of appeals struggled with interpreting two
statutes that address the same subject matter, charging for health
care records. Wisconsin Stat. § 146.84(1)(b) provides a general
prohibition to "any person" in regard to those charges and Wis.
Stat. § 146.83(3f)(b) provides a prohibition limited to a "health
care provider." The court of appeals' efforts at reconciling the
two statutes relied heavily on its perception of legislative
"intent" and the "purpose" of Wis. Stat. § 146.83(3f)(b) to
conclude that § 146.83(3f)(b)'s fee restrictions applied to
ChartSwap.
¶24 Even after acknowledging that ChartSwap is not a health
care provider under Wis. Stat. § 146.81(1)'s definition, see
Townsend, 395 Wis. 2d 229, ¶8, the court of appeals reasoned that
the "intent of the legislature was to ensure that patients have
13
No. 2019AP2034
access to medical records in the custody and control of health
care providers without being charged more than the reasonable costs
of copying and mailing them." Id., ¶14. The court of appeals
reliance on its perception of legislative intent when construing
a statute is misplaced, as we have explained. State v. Fitzgerald,
2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165 ("[R]ather, we
interpret the words the legislature actually enacted into law.").
¶25 If the court of appeals had employed the
general/specific canon of statutory construction, it could have
assisted its interpretations of Wis. Stat. § 146.84(1)(b) and Wis.
Stat. § 146.83(3f)(b). To explain further, although the
"general/specific canon is perhaps most frequently applied to
statutes in which a general permission or prohibition is
contradicted by a specific prohibition[,]. . . [it] has full
application as well to statutes such as the one here, in which a
general authorization and a more limited, specific authorization
exist side-by-side." RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012) (emphasis added). As Justice Scalia
explained, "There the canon avoids not contradiction but the
superfluity of a specific provision that is swallowed by the
general one, 'violating the cardinal rule that, if possible, effect
shall be given to every clause and part of a statute.'" Id.(citing D. Ginsburg & Sons v. Popkin, 285 U.S. 204, 208 (1932)
(explaining that "[s]pecific terms prevail over the general in the
same or another statute which otherwise might be controlling.")).
¶26 Applying the general/specific canon here would have
assisted the court of appeals in understanding that when the
14
No. 2019AP2034
wording of a general statute swallows the application of a specific
statute, the "terms of the specific authorization[, Wis. Stat.
§ 146.83(3f)(b),] must be complied with." RadLAX Gateway Hotel
LLC, 566 U.S. at 645. Therefore, once the court of appeals
acknowledged that ChartSwap was not a statutorily-defined health
care provider, at which § 146.83(3f)(b) is directed, the court of
appeals' inquiry in regard to ChartSwap should have stopped.
Instead, its decision misconstrued § 147.83(3f)(b), whose plain
meaning applies only to health care providers.
C. Wisconsin Stat. § 990.001(9)
¶27 The court of appeals also concluded that, even if
ChartSwap was not included in the statutorily-defined list of
health care providers, ChartSwap was nevertheless personally
liable to Townsend for extra charges under principles of agency
law that the court of appeals concluded were codified in Wis. Stat.
§ 990.001(9). Townsend, 395 Wis. 2d 229, ¶¶10-13.
¶28 Wisconsin Stat. ch. 990 provides canons of construction
that shall be observed when construing or interpreting Wisconsin
statutes. See Wis. Stat. § 990.001. Subsection (9) provides:
Acts by agents. If a statute requires an act to be done
which may legally be done by an agent, such requirement
includes all such acts when done by an authorized agent.
§ 990.001(9). The court of appeals interpreted § 990.001(9) to
mean that if a statute requires a certain action, the requirement
to comply with the statute applies "with equal force" to a
principal's agent. Townsend, 395 Wis. 2d 229, ¶10. Consequently,
the court of appeals reasoned that because ChartSwap was fulfilling
15
No. 2019AP2034
a request made of Milwaukee Radiologists, the fee restrictions on
Milwaukee Radiologists applied equally to ChartSwap.
¶29 The court of appeals' interpretation of Wis. Stat.
§ 990.001(9) misperceives Wisconsin common law principles of
agency. The court of appeals' interpretation is also in conflict
with the plain meaning of § 990.001(9).
¶30 "[A]n agent is one who acts on behalf of and is subject
to reasonably precise control by the principal for the tasks the
person performs within the scope of the agency." Westmas v.
Creekside Tree Serv., Inc., 2018 WI 12, ¶36, 379 Wis. 2d 471, 907
N.W.2d 68. "Whether an agency relationship exists is a question
of fact that turns on the understanding between the alleged
principal and the alleged agent of the relationship." DOR v.
Microsoft Corp., 2019 WI App 62, ¶46, 389 Wis. 2d 350, 936 N.W.2d
160 (citing Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340
N.W.2d 575 (Ct. App. 1983)).
¶31 Townsend seeks to hold ChartSwap liable because of the
fees it charged for health care records that were generated by
Milwaukee Radiologists, a health care provider. However, an agent
is subject to "liability to a third party harmed by the agent's
conduct only when the agent's conduct breaches a duty that the
agent [itself] owes to the third party." Restatement (Third) of
Agency § 7.02. Stated otherwise, in order for an agent to be held
liable for a statutory violation committed while acting on behalf
of a principal, that same conduct also would need to violate the
statute if done in the agent's personal capacity. However, no
breach of an independent duty of ChartSwap to Townsend is alleged
16
No. 2019AP2034
to have occurred. Rather, a breach of Milwaukee Radiologists'
statutory duty to Townsend is alleged.
¶32 Under a plain reading of Wis. Stat. § 990.001(9), the
statute simply affirms the common law principle that an agent may
fulfill a principal's statutory duty because, in the eyes of the
law, the agent's actions are the principal's actions. Not only
did the Seventh Circuit come to a similar conclusion in its recent
interpretation of § 990.001(9), see Smith v. RecordQuest, LLC, 989
F.3d 513, 519 (7th Cir. 2021), but Wisconsin case law confirms
this understanding.
¶33 In Rosecky v. Tomaszewski, 225 Wis. 438, 274 N.W. 259(1937), a lender told a debtor to make payments on a mortgage to
an agent that the principal had authorized. Id. at 439.
Subsequently, the lender assigned the mortgage to a third party.
Id. However, the debtor was never notified of this change and
continued to pay the agent, who embezzled the funds. Id.
¶34 The assignee sued the debtor and the dispositive issue
was whether the debtor should be credited with the payments made
to the agent after the assignment. Id. In interpreting the
predecessor statute to Wis. Stat. § 990.001(9), we held that the
debtor was due credit for the payments made to the agent because
the principal established the agency and "the act of an authorized
agent is the act of the principal." Id. at 442.
¶35 Furthermore, a plain meaning interpretation of Wis.
Stat. § 990.001(9) provides that if a principal is required by
statute to do an act and that act may be done legally by an agent,
the statutory requirement of the principal to act includes all
17
No. 2019AP2034
acts that were done by the principal's authorized agent. It says
not one word about making the agent personally liable for acts
taken upon authorization of the principal. It simply states the
common law of agency that an act done by an authorized agent is
the act of the principal.
¶36 Accordingly, we conclude that the plain meaning
interpretation of Wis. Stat. § 990.001(9) embodies the fundamental
common law principle that an agent's actions are the principal's
actions for purposes of fulfilling a principal's statutory duty.
Subsection 990.001(9) imposes no personal liability on an agent
for authorized acts taken on behalf of its principal.
III. CONCLUSION
¶37 We conclude that, under a plain meaning interpretation
of Wis. Stat. § 146.81(1), ChartSwap is not a health care provider;
and, therefore, it is not subject to the fee restrictions in Wis.
Stat. § 146.83(3f)(b), which regulate health care providers.
Additionally, we conclude that neither common law principles of
agency nor the plain meaning of Wis. Stat. § 990.001(9) supports
the conclusion that an agent is personally liable for charging
more for health care records than the statute permits its principal
to charge. Accordingly, we reverse the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
reversed.
18
No. 2019AP2034.rfd
¶38 REBECCA FRANK DALLET, J. (concurring). Although the
substantive canons of statutory interpretation may sometimes be
helpful in determining what the legislature meant to say, here
they only confuse the analysis. The statutes at issue are
straightforward, and understanding them requires no outside
interpretive help. I agree with the majority opinion that Wis.
Stat. § 146.83(3f)(b), by its plain meaning, does not apply to
ChartSwap. As the majority opinion acknowledges, that should end
the analysis. Instead, it muddies the waters by attempting to
apply an inapposite canon of construction. I therefore
respectfully concur.1
¶39 The general-specific canon applies only to statutes that
both address the same subject matter and conflict with one another
such that harmonizing them is impossible. See Kramer v. City of
Hayward, 57 Wis. 2d 302, 310-11, 203 N.W.2d 871 (1973); see also
Antonin Scalia & Bryan A. Garner, Reading Law 183 (2012)
(explaining that the general-specific canon may apply only when
conflicting provisions "simply cannot be reconciled——when the
attribution of no permissible meaning can eliminate the
conflict"). Neither condition is met here. Wisconsin Stat.
§§ 146.83(3f)(b) and 146.84(1)(b) address different subject
matters and are not in conflict. The former regulates how much a
health care provider can charge a patient for a copy of her medical
records; the latter simply provides the penalty for violating the
former. See majority op., ¶18. Thus, the general-specific canon
does not apply.
I join all parts of the majority opinion except for ¶¶17
1
and 23-26.
1
No. 2019AP2034.rfd
¶40 This case is prime example of how foisting the canons
upon an otherwise straightforward, well-reasoned, and convincing
textual analysis is unnecessary——and ultimately confusing. Even
if the majority opinion is correct that the general-specific canon
applies when a general "authorization" "swallows" a specific
authorization, see id., ¶¶25-26, the majority opinion fails to
explain how this is such a situation. It offers no explanation
for how §§ 146.83(3f)(b) and 146.84(1)(b) are "authorizations" or
for how one swallows the other. Indeed, the majority opinion's
conclusion that the general-specific canon would have "assisted"
the court of appeals' analysis is a non sequitur: How could the
canon "assist" the court of appeals if it does not even apply?
All of this confusion could easily be avoided by simply reading
and applying the statutory text. Because the majority opinion
instead shoehorns an inapplicable canon into its analysis, I
respectfully concur.
¶41 I am authorized to state that Justices ANN WALSH BRADLEY
and JILL J. KAROFSKY join this opinion.
2
No. 2019AP2034.rfd
1