LAW NOTES from the Law Offices of
Kay & Andersen, LLC

April, 2017
What Every Insurer Should Know . . . . . . . . . . . . . . . 
                            ABOUT CONTRACTUAL WAIVER OF A RIGHT TO A JURY TRIAL

​​Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.

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The right to a jury trial is often viewed as a fundamental hallmark of our court system. However, courts have also recognized that right is not universal and may be waived by contract. In a recent Wisconsin Supreme Court case, the Court examined the circumstances under which a right to trial by jury may be waived by contract. In Parsons v. Associated Banc-Corp, 2017 WI 37 (April 13, 2017) (found at https://www.wicourts.gov/ca/opinion/DisplayDocument .pdf?content=pdf&seqNo=167823), Parsons alleged claims of racketeering and negligent hiring, training, and supervision against Associated relating to a construction project intended to renovate housing in a financially distressed area. Parsons’ Amended Complaint was filed on December 12, 2012, and included a jury demand. On January 9, 2013, Parsons paid the jury fee. On May 14, 2014, Associated filed a motion to strike Parsons’ jury demand on the basis that a promissory note issued in 2004 for the underlying project contained a provision waiving a right to a jury trial. The circuit court’s decision to grant the motion to strike the jury demand was then appealed to the Wisconsin Supreme Court. The Supreme Court noted that there is no statute governing contractual jury waivers, although that issue was not considered dispositive because Article 1, Section 5 of the Wisconsin Constitution does not limit the manner of jury trial waiver to those set forth by statute. Id, ¶24. Consequently, the Court reviewed other sources of law to determine whether the alleged waiver of the right to a jury trial was valid. Focusing on the common law of contracts, the Court concluded that the pre-litigation jury waiver provision in the contract between Parsons and Associated was enforceable. The contract language was unambiguous and noted that the borrower had read and understood all of the provisions of the note. Associated therefore did not need to offer additional proof that the waiver was knowing and voluntary. Id, ¶37. The Court then considered whether Associated’s motion was untimely. The Supreme Court concluded that the circuit court had not erroneously exercised its discretion in allowing Associated to rely on the agreement. Having contracted away the right to a jury trial, any reliance that Parsons might have had on Associated’s initial acquiescence in the demand for a jury trial was not reasonable. Id, ¶42. This case illustrates that Wisconsin courts are willing to enforce contract language over untimeliness objections even on a right considered as fundamental as the right to a jury trial. The principle here is that defense arguments based on contract language may be viable even if initially overlooked at the outset of a lawsuit, provided the contract provision is unambiguous and was acknowledged by the parties to the contract.

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