Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Timmy Duerr v. The Labor and Industry Review Commission and Village of Greendale, Case 97-CV-3406 (Wis. Cir. Ct., Dane Co., August 17, 1998)

Digest Codes:  MC 618   MC 692.02 

The employe was a firefighter employed by the Village of Greendale. He was driving home from a funeral reception at which he admitted he drank at least six and one-half 10 ounce beers, when he was involved in a motor vehicle accident. A passenger in the car which the employe's car struck was killed in the accident. The employe's blood alcohol was not measured until three and one-half hours after the accident, but at that time it was .063. An expert witness testified that based on the .063 reading, the employe's blood alcohol at the time of the accident was .10. The employe was charged with and convicted of homicide by negligent use of a motor vehicle.

The employer has a work rule which provides that no off-duty firefighter shall be under the influence of alcohol in public view and where his/her conduct while under the influence brings disregard to the fire department. The employer discharged the employe for violation of this rule. The appeal tribunal found that the employe's actions had no connection to his employment and allowed benefits. The commission reversed and found misconduct based on the employe's violation of the employer's work rule previously described. [Commission decision]. The employe appealed and argued that his accident constituted ordinary negligence, and it was not proven that he had been under the influence of alcohol when the accident occurred.

Held: The commission is affirmed. The employe was convicted of homicide by negligent use of a motor vehicle, and there was expert testimony that his blood alcohol was .10 at the time of the accident. A reasonable person would conclude that the employe's wilful and intentional violation of the employer's work rule constituted misconduct connected with his employment.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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