Zorina K. Reed v. Sentry Select Insurance Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 22, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2132 Cir. Ct. No. 2021CV899

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

ZORINA K. REED,

PLAINTIFF-APPELLANT,

ANTHEM BLUECROSS BLUESHIELD AND MID-CENTURY INSURANCE
COMPANY,

SUBROGATED-PLAINTIFFS,

V.

SENTRY SELECT INSURANCE COMPANY, CARGOTRANS INTERNATIONAL
CORP AND DIMITROV S. DIMITAR,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Kenosha County:
HEATHER R. IVERSON, Judge. Reversed and cause remanded with directions.

Before Gundrum, Grogan, and Lazar, JJ.
No. 2024AP2132

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Zorina Reed appeals from a judgment of the circuit
court that dismissed her lawsuit for failing to prosecute her case and imposed
attorney fees, costs, and monetary sanctions. For the reasons explained below, we
conclude the court erred by dismissing Reed’s case. Because we reverse the
court’s judgment, we also vacate the court’s imposition of various fees, costs, and
sanctions. We remand this case for further proceedings that are consistent with
this opinion.

BACKGROUND

¶2 On July 25, 2019, Reed was in an automobile accident. As relevant,
on September 22, 2021, Reed, by counsel, brought a negligence action against
Sentry Select Insurance Company, Cargotrans International Corp., and
Dimitrov S. Dimitar (collectively, “Sentry”) based on that accident. Sentry
answered the complaint and denied the allegations.

¶3 On December 1, 2021, Sentry served Reed with its first set of
interrogatories and requests for production of documents. Reed failed to respond
to the discovery, and, eventually, on May 4, 2022, Sentry moved the circuit court
to compel Reed to answer its discovery. A motion hearing was scheduled for
June 15, 2022.

¶4 The day before the scheduled motion hearing, on June 14, 2022,
Sentry withdrew its motion. Sentry advised the circuit court that Reed had
answered the outstanding discovery requests.

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¶5 On September 12, 2022, Reed’s counsel, Attorney JoAnne Krabbe,
moved to withdraw, and the circuit court permitted counsel’s withdrawal. Reed,
then pro se, advised the court that she intended to retain new counsel, and the
court set a status hearing for December 7, 2022.

¶6 On November 30, 2022, Sentry contacted Reed, who had not
retained new counsel, to schedule a mutually agreeable time for her deposition.
The parties agreed Reed would be deposed on December 12, 2022 at 11:00 a.m.
Sentry formally served Reed with a notice of deposition on November 30.

¶7 Reed did not appear at the circuit court’s December 7, 2022 status
hearing. Instead, she filed a letter stating:

I am currently looking to Rehire [A]ttorney Krabbe, I have
spoken with Attorney Krabbe, she is willing to be
reinstated as my attorney. I am notifying the courts of my
decision. If you have any concerns or issues in regards to
this matter, please contact me. Thank you.

¶8 Sentry, who did appear at the December 7, 2022 court hearing,
advised the circuit court that it was skeptical of Reed’s representation. However,
it asked the court to set the case for another status so Sentry could confirm with
Attorney Krabbe that she was going to resume representing Reed in this case. The
court scheduled a status hearing for February 1, 2023.

¶9 Sentry then contacted Attorney Krabbe, who advised that she would
not be representing Reed and Reed was proceeding pro se. Sentry contacted Reed
directly, and Reed advised Sentry that she would attend her scheduled
December 12, 2022 deposition.

¶10 However, on December 12, 2022, Reed did not appear at the noticed
deposition. Sentry’s attempts at contacting Reed about her nonappearance were

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unsuccessful. Before the court reporter, Sentry made a record of Reed’s
nonappearance and that transcript is in the Record.

¶11 Reed eventually made contact with Sentry, and Reed advised that
she did not attend the December 12, 2022 deposition because she did not feel
comfortable participating without a lawyer. Sentry asked Reed to provide it with
an update on the status of Reed’s counsel by January 6, 2023.

¶12 By January 13, 2023, Reed had not retained counsel, and Sentry
reached out to Reed to schedule another deposition. Reed agreed to be deposed at
the courthouse following the February 1, 2023 status hearing. Sentry served a
second notice of deposition on Reed directing her to appear at the courthouse on
February 1 for her deposition.

¶13 At the February 1, 2023 status hearing, the circuit court set a new
scheduling order. Sentry advised the court that Reed was going to be deposed
following the hearing. The court advised Reed that if she wanted to be
represented by an attorney, she needed to begin her search immediately, and
needed to advise any prospective attorney of the court’s scheduling order.

¶14 In the courtroom hallway following the status hearing, Reed advised
Sentry that she would not be participating in the deposition. Sentry explained to
Reed that it would be filing a motion to dismiss, or in the alternative a motion to
compel, and would seek costs and fees associated with the two missed depositions.
Reed left the courthouse.

¶15 On February 9, 2023, Sentry moved to dismiss or, in the alternative,
to compel Reed to appear for a deposition. Sentry attached affidavits and exhibits
to its motion. A motion hearing was scheduled for March 13, 2023.

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¶16 On March 13, 2023, Attorney Christopher Strohbehn filed a notice
of retainer and indicated he was going to represent Reed. He also moved to
adjourn the motion hearing so that Reed could file a response. The motion hearing
was rescheduled to May 26, 2023.

¶17 At the May 26, 2023 motion hearing, Sentry recited the facts as
outlined above. Sentry argued dismissal was appropriate because Reed had not
advanced her case, and she “simply failed to show up for her own properly noticed
deposition not once, but twice.” Reed, by counsel, acknowledged that “[Sentry] is
upset and prejudiced,” but argued that Reed was unrepresented when she failed to
appear at the two depositions, did not want to appear without counsel, and she was
now “ready … to comply and appear at a deposition.”

¶18 Ultimately, the circuit court denied Sentry’s motion to dismiss.
However, the court addressed Reed directly and stated:

[T]here is enough to suggest to me that you have been
noncooperative during the periods when you haven’t had a
lawyer.

You have been given opportunities to obtain an attorney
and I understand there can be some difficulty doing that,
but when you’re under an obligation to do something to
make the matter move towards resolution which is what
you want and you are noncooperative with that, that causes
harm to everybody. From yourself and the other party
through the whole entire system.

¶19 The circuit court directed Sentry

to prepare a list of what [Sentry] claims to be the costs
incurred as a result of the noncompliance with Court
obligations. Submit that to [Reed] through counsel and
they’re to respond whether they dispute the responsibility
for any of those episodes or all.

Whatever the case may be and include also the what you
believe to be the costs for court reporter or fees or whatever

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No. 2024AP2132

the case may be and if you can’t resolve it between
yourselves then you can renew it … on letter notice and
letter argument.

The court then set a new scheduling order with the parties.

¶20 On August 29, 2023, Attorney Strohbehn moved to withdraw.
While the withdrawal motion was pending, Sentry moved for reconsideration of its
prior motion to dismiss. Sentry advised the circuit court that since May 2023, it
had scheduled two depositions for Reed and both were canceled given her issues
with counsel. Sentry also advised the court that in June 2023, it had “circulated to
Ms. [Reed]’s counsel the enclosed itemization of fees and costs[1] related to
[Sentry’s] attempts to depose Ms. [Reed] and the motion to compel Ms. [Reed]’s
attendance for her deposition.” Sentry stated the total amount was $3,909.05 and
it never received a response from Reed regarding the sanctions demand.

¶21 At this point, and prior to deciding the pending motions, the judge
assigned to the case retired. In January 2024, the parties appeared before the chief
judge who informed the parties that a new judge had been appointed by the
Governor and would be assigned to the case. The chief judge advised the parties
that the current hearing before the circuit court would be limited to counsel’s
withdrawal motion and the remaining motions would be decided by the
newly-appointed judge. Ultimately, the court granted counsel’s withdrawal
motion. A hearing before the newly-appointed judge was scheduled for March 13,
2024.

1
No itemization is included in the Record.

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No. 2024AP2132

¶22 On that date, Reed, pro se, and Sentry appeared before the
newly-appointed circuit court judge, the Honorable Frank Gagliardi. The court
observed that Sentry’s dismissal motion remained pending. Sentry advised the
court that Reed had not yet sat for a deposition and had not returned medical
authorization forms.

¶23 The circuit court advised the parties that it would not dismiss Reed’s
case at the hearing. Instead, the court scheduled a dismissal motion hearing, and it
instructed Reed that before that hearing, she needed to sit for a deposition and
complete and return the medical authorization forms. It explained:

I don’t want to sanction you. I’m going to hold the
sanctions in abeyance, okay, to see if you’ll cooperate and
comply with the orders that I’m putting in place now for
the depositions to make sure that you comply with the
depositions with or without an attorney, because you’re
making a conscious decision to keep this case going.

¶24 The parties next appeared before the circuit court on May 9, 2024.
Sentry advised the court that since the last court appearance, Reed sat for her
deposition, complied with requests for medical authorizations, and supplemented
her discovery responses. However, Sentry renewed its request to dismiss the case
for failure to prosecute given the previous delays. Sentry also asked the court to
award the requested $3,909.05 in sanctions associated with Reed’s two missed
depositions and the cost of bringing the previous motion.

¶25 The circuit court advised Sentry that based on Reed’s current
compliance and because the case was getting back on track, it would continue to
hold the dismissal motion and sanctions in abeyance. Given Reed’s permanency
claims, the court ordered Reed to comply with an independent medical
examination (“IME”) by July 15, 2024 and ordered both parties to comply with

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discovery and depositions. The court set the matter for “a status
conference/motion hearing on [Sentry’s] motion for sanctions/scheduling
conference” on September 26, 2024. The court further advised the parties that a
new circuit court judge, the Honorable Heather Iverson, would be assigned to this
case when they returned to court in September.

¶26 The parties scheduled Reed’s IME for July 24, 2024 at 9:00 a.m.
Reed was instructed to arrive at 8:45 a.m. for the appointment; however, she
arrived at the appointment at approximately 9:27 a.m. Reed explained she was
late because there was a traffic accident on the highway. The doctor’s staff
advised Reed that she was too late for the appointment, and the doctor would not
have time to perform the examination.

¶27 On July 29, 2024 and August 7, 2024, Reed, pro se, defended
depositions Sentry took of two doctors. Reed also took the deposition of the
driver involved in the underlying accident.

¶28 On August 12, 2024, Sentry renewed its motion to dismiss or, in the
alternative, moved to compel Reed to attend an IME and to execute additional
medical authorization forms. Sentry outlined the entire history of the case,
including Reed’s failure to timely attend the IME and her current refusal to sign
additional medical authorizations.

¶29 On August 28, 2024, Reed filed a response to Sentry’s motion to
dismiss. She explained she was late for the IME because Sentry had provided her
with inconsistent times for the appointment, “[o]n short notice, [she] received a
phone call stating that the appointment was moved back to 9am[,]” and, on the day
of the appointment, she “traveled an hour to reach the location but encountered
significant delays due to an accident on the highway, which hindered [her] timely

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No. 2024AP2132

arrival.” Reed advised the circuit court that she was turned away from the
appointment when she arrived and told rescheduling was not possible; however,
she was fully prepared to attend another appointment.

¶30 Reed also advised the circuit court that, contrary to Sentry’s claims,
she signed authorizations for the release of her medical records in March 2024,
and she attached copies of the signed authorizations. Finally, Reed explained the
case was progressing and she attached the deposition transcripts of the three
depositions that had taken place since the last court hearing.

¶31 In mid-September 2024, the parties participated in mediation.
Mediation was not successful.

¶32 On September 26, 2024, the parties appeared for the first time before
Judge Iverson. Sentry again argued the case should be dismissed. Reed asserted
the case should not be dismissed. Reed again explained she was late to the IME
because of an accident on the highway and, as for Sentry’s latest round of medical
authorizations, Reed advised the circuit court that she had previously signed
medical authorizations and the new requests were too invasive.

¶33 The circuit court dismissed Reed’s lawsuit. It explained:

[Reed] has demonstrated a persistent pattern of conduct that
has significantly impeded the progress of this case and
[Sentry’s] ability to prepare a defense.

Specifically, Ms. [Reed] failed to provide timely
responses to [a] written discovery request, which was
necessitating a motion to compel from the Defendants. On
two separate occasions, Ms. [Reed] failed to appear for
properly noticed depositions. Ms. [Reed] appeared
unreasonably late for a court ordered independent medical
examination on July 25th, 2024, resulting in the
cancellation of the examination. Ms. [Reed] has repeatedly

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refused to sign additional medical authorizations necessary
for the Defendants to obtain relevant medical records.

The Court finds that Ms. [Reed]’s conduct throughout
this litigation has been egregious. Her actions and
inactions have not only delayed the proceedings, but have
also substantially prejudiced the Defendant’s ability to
investigate and defend against these claims. Ms. [Reed]
has failed to provide any clear and justifiable excuse for her
repeated non-compliance with discovery obligations, court
orders and the basic expectations of litigants in our judicial
system. The Court has previously imposed lesser
sanctions, including an order for Ms. [Reed] to attend her
deposition and an award of attorney’s fees and costs related
to the Defendant’s failed attempts to [de]pose her. And
despite these measures, Ms. [Reed]’s obstructive conduct
has persisted.

The Court recognizes that dismissal is a very harsh
remedy. However, given the egregious nature of
Ms. [Reed]’s conduct, the prejudice to the Defendants and
the need to preserve judicial integrity and promote the
orderly processing of cases, the Court finds that dismissal is
warranted in this instance.

Therefore, it is hereby ordered the Defendant’s motion
to dismiss or failure to prosecute is granted. This action is
dismissed with prejudice[, p]ursuant to [WIS. STAT.
§§] 805.03 and 804.12(2)(a) [(2023-24)2]. The Plaintiff,
Zorina [Reed], shall pay the Defendant’s reasonable
attorney’s fees and costs associated with this motion and
previous sanctions. The previous sanction was in the
amount of $3,909.05. Defendant’s counsel shall submit an
affidavit of fees and costs within 14 days of this order, and
they shall draft the order for this hearing. This order is
final for purposes of appeal, and that will conclude the
hearing.

¶34 The circuit court’s written order authorized $3,909.05 in sanctions
for the two missed depositions, $6,911.50 in sanctions for the missed IME, and
statutory costs. Reed appeals.

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP2132

DISCUSSION

¶35 WISCONSIN STAT. § 805.03 grants circuit courts “the authority to
dismiss actions or grant default judgment when a party has interfered with ... ‘the
orderly administration of justice.’” Buchholz v. Schmidt, 2024 WI App 47, ¶62,
413 Wis. 2d 308, 11 N.W.3d 212 (alteration in original, citation omitted).
Although a court has discretion to dismiss an action as a sanction, it is a
particularly harsh sanction and is appropriate only when the non-complying party
has acted egregiously or in bad faith. Industrial Roofing Servs., Inc. v.
Marquardt, 2007 WI 19, ¶¶42-43, 299 Wis. 2d 81, 726 N.W.2d 898. A party’s
failure to comply with a court order is egregious conduct when there is no “clear
and justifiable excuse[.]” Id., ¶43 (citation omitted).

¶36 We review a circuit court’s decision that imposes dismissal as a
sanction for an erroneous exercise of discretion. Buchholz, 413 Wis. 2d 308, ¶64.
“A discretionary decision will be sustained if the circuit court has examined the
relevant facts, applied a proper standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable judge could reach.” Scudder v.
Concordia Univ., Inc., 2025 WI App 13, ¶24, 415 Wis. 2d 318, 18 N.W.3d 173
(citation omitted).

¶37 Upon a review of the Record, we conclude that the circuit court
erroneously exercised its discretion when it determined Reed’s actions amounted
to egregious conduct and that dismissal was an appropriate sanction. As we
explain below, the court’s conclusion is based in part upon errors of fact and of
law. Further, although the court has discretion to accept or reject a proffered
excuse for conduct, the Record reflects the court provided no explanation or
analysis as to why Reed’s explanations were inadequate to constitute a “clear and

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justifiable excuse[.]” See Industrial Roofing, 299 Wis. 2d 81, ¶43 (citation
omitted).

¶38 Here, the circuit court generally found Reed’s conduct to be
egregious for four reasons: (1) she failed to provide timely responses to discovery
which necessitated a motion to compel from Sentry; (2) she failed to appear at two
properly noticed depositions; (3) she was tardy for her IME, which caused the
appointment to be canceled; and (4) she failed to provide Sentry with additional,
signed medical authorizations.

¶39 We start with the circuit court’s conclusion that “Ms. [Reed] failed
to provide timely responses to [a] written discovery request, which …
necessitat[ed] a motion to compel from [Sentry].” In making this determination,
the court overlooked that Reed was represented by counsel when she failed to
provide timely responses to the written discovery, and Sentry moved to compel.
Because Reed was represented by counsel for this event, the court was required to
make specific factual determinations before imputing counsel’s conduct onto
Reed. Scudder, 415 Wis. 2d 318, ¶49; see also Industrial Roofing, 299 Wis. 2d
81, ¶63. Specifically, the court needed to determine whether “(1) the client failed
to act in a reasonable and prudent manner in monitoring her attorney’s conduct in
the litigation and (2) the client had knowledge of, should have known, or was
complicit in the attorney’s egregious conduct.” Scudder, 415 Wis. 2d 318, ¶49.
The court in this case made no such findings. As a result, the untimely discovery
responses and the motion to compel cannot serve as a basis for determining that
Reed’s conduct was egregious.

¶40 The circuit court also determined Reed’s conduct was egregious
because “[o]n two separate occasions, Ms. [Reed] failed to appear for properly

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noticed depositions.” The court observed that it had “previously imposed lesser
sanctions, including … an award of attorney’s fees and costs related to [Sentry’s]
failed attempts to [de]pose her[,]” “the previous sanction was in the amount of
$3,909.05[,]” and even with this lesser sanction, “Ms. [Reed]’s obstructive
conduct has persisted.”

¶41 Factually, the circuit court did previously admonish Reed for failing
to attend two properly noticed depositions. The court also invited Sentry to submit
an itemized statement of costs for those missed depositions and advised if the
parties could not agree, then the matter would be decided by motion. However,
the court never actually imposed $3,909.05 in sanctions. Instead, the court
advised Reed that it would hold Sentry’s requested sanctions in abeyance so that
Reed could continue to progress her case. The court’s conclusion that Reed’s
conduct warranted dismissal because it had previously imposed a sanction of
$3,909.05 and this monetary sanction had not deterred Reed’s conduct, is a factual
error.

¶42 We then turn to the “new” conduct underlying Sentry’s motion to
dismiss. The circuit court found that Reed “appeared unreasonably late for a court
ordered independent medical examination on July 25th, 2024, resulting in the
cancellation of the examination” and Reed “repeatedly refused to sign additional
medical authorizations necessary for [Sentry] to obtain relevant medical records.”
At first blush, we agree Reed’s actions were inconsistent with the court’s May 23,
2024 order requiring her to attend an IME by July 2024 and comply with
discovery demands.

¶43 However, Reed offered explanations to the circuit court for her
conduct. Specifically, she advised the court that she was late to the IME because

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there was confusion regarding the time of the appointment, she traveled an hour to
get to the appointment, and there was a traffic accident that prevented her from
timely arriving. She also explained that she signed the initial medical
authorization forms as required but the additional forms were too invasive.

¶44 The Record reflects that when the circuit court concluded that
Reed’s conduct regarding the untimely IME arrival and her refusal to sign the
additional medical authorization forms was egregious, the court made no findings
as to why Reed’s explanations for the conduct were inadequate to constitute a
“clear and justifiable excuse” for her conduct. See Industrial Roofing, 299
Wis. 2d 81, ¶43 (citation omitted). Further, although the court found that Reed
had “demonstrated a persistent pattern of conduct that has significantly impeded
the progress of this case[,]” the Record does not reflect that the court considered
other activities Reed participated in to further her case—including participating in
three witness depositions and mediation before the hearing before Judge Iverson.

¶45 Because the circuit court improperly imputed Reed’s counsel’s
conduct onto Reed without first making appropriate findings, incorrectly assumed
the $3,909.05 in sanctions for the two missed depositions had actually been
awarded by a previous judge, and did not make factual findings regarding why
Reed’s proffered explanations for arriving late for the IME and failing to sign the
additional medical authorization forms, were inadequate to constitute a “clear and
justifiable excuse[,]” see id., we conclude the court’s dismissal of Reed’s lawsuit
amounted to an erroneous exercise of discretion. We therefore reverse the
judgment dismissing Reed’s case. Because we reverse the judgment dismissing
Reed’s case, we also vacate the court’s award of monetary sanctions, costs, and
fees. We remand this case for further proceedings that are consistent with this
opinion.

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By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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