Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding Using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Percentage of Value: 70%
Damage exceeding 70% of fair market value will render vehicle less than seven model years old a salvage vehicle. This only applies “If the vehicle is less than 7-years-old, is damaged by collision or other occurrence to the extent that the estimated or actual cost, whichever is greater, of repairing the vehicle exceeds 30% of its fair market value and was transferred to an insurer upon payment of an insurance claim.” Wis. Stat. § 342.065(1)(c); Wis. Stat. § 342.06(1)(hr).
Automobile and Property: No applicable statute or Administrative Code provision exists. Wisconsin’s Office of the Commissioner of Insurance orally advises it relies on case law to establish if the insured is entitled to the first dollar collected. Rimes v. State Farm Mut. Auto. Ins. Co., 316 N.W.2d 348 (Wis. 1982). Note that the Commissioner indicates that it would not object if the insurer reduced reimbursement by the percentage of comparative negligence of insured – assuming the insurer’s subrogation efforts to collect money from the at-fault driver also includes same reduction. The Commissioner “recommends” a written agreement with the insured regarding reimbursement of the deductible, including possible pro-rata reduction for collection costs.
Diminution of Value
First Party: Insurance policy limits of liability provision permitted insurer to choose to repair vehicle, even if all possible repairs would not restore vehicle to its pre-collision market value. Insurer is not required to pay for diminished value following adequate repairs. Wildin v. Am. Family Mut. Ins. Co., 638 N.W.2d 87 (Wis. App. 2001). On November 29, 2001—the day after the seminal Georgia decision in State Farm Mut. Auto. Ins. Co. v. Mabry, 556 S.E.2d 114 (Ga. 2001)—the Wisconsin Court of Appeals decided Wisconsin’s own first-party diminution in value case. In Wildin, the court affirmed a trial court’s grant of the insurer’s motion to dismiss the insured’s complaint against the insurer for failure to pay residual diminished value in addition to repair costs. The insured argued that despite the repairs, no repair could have restored the vehicle to pre-loss condition because of unibody structure and/or frame damage. The court disagreed with the insured, holding that the policy language only required the carrier to pay for all necessary “repairs” and “repair,” given its ordinarily understood meaning, and this did not mean the carrier had to restore the vehicle to its pre-loss value.
Third Party: Plaintiffs may be “entitled to either the reasonable cost of repairs or the diminution in fair market value of the vehicle, whichever is less.” However, an owner is entitled to cost-of-repair damages and loss-of-value-after-repair damages if the owner proves that the repairs to the vehicle did not restore the vehicle to its pre-injury value. Paulson v. Allstate Ins. Co., 649 N.W.2d 645 (Wis. App. 2002); Hellenbrand v. Hilliard, 687 N.W.2d 37 (Wis. App. 2004).
Funeral Procession Traffic Laws
Wisconsin law is identical to the Illinois statute in its requirements except that it grants these privileges to military convoys as well as funeral processions. Wis. Stat. § 346.20.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver will not be imputed to an owner/passenger in owner’s action against third party for full value of damaged vehicle operated by permissive user, unless they are in joint venture or mutual agency relationship. Emerich v. Bigsby, 286 N.W.2d 51 (Wis. 1939); Vogel v. Vetting, 60 N.W.2d 399 (Wis. 1953).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine. Knoche v. Stracka, 353 N.W.2d 842 (Wis. App. 1984).
Sponsor Liability for Minor’s Driving: Wis. Stat. § 343.15: Joint and several liability is imposed on the parents who signs the child’s license application for the child’s negligent or willful misconduct in operating a motor vehicle. Liability is limited to $300,000.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No one can drive a motor vehicle while composing or reading an electronic text message or mail message. Exceptions include authorized operators of emergency vehicles or if it is hands-free. Wis. Stat. § 346.89(3)(a).
Novice drivers holding a learner’s permit or intermediate license may not operate a motor vehicle while using a cellular device in any capacity. Wis. Stat. § 346.89(4)(a).
No person may operate a motor vehicle with a hand-held cell phone while in a work zone. Exceptions include emergency situations or if being used hands-free. Wis. Stat. § 346.89(4)(m).
Other Prohibitions: No Applicable Laws*
Comments: *Although driving with headphones/ earbuds is not illegal, you can be cited for inattentive driving.
Loss Of Use
Loss of Use: Yes. Loss of use is recoverable in Wisconsin. Hellenbrand v. Hilliard, 687 N.W.2d 37 (Wis. App. 2004). The time period for measuring loss of use damages is normally the time the vehicle is out of service. Id. The time period does not necessarily end when the owner purchases a new vehicle. Id. The owner is entitled to loss of use damages relating to the time period after he returned his rental vehicle and until his repaired vehicle is returned to him, even if he purchases a new vehicle in the interim. Id. Loss of use is recoverable even when the owner does not obtain a replacement rental vehicle. Kim v. American Family Mutual Ins. Co., 501 N.W.2d 24 (Wis. 1993). Loss of use is recoverable even when the vehicle is not repairable. Nashban Barrel & Container Co. v. G. G. Parsons Trucking Co., 182 N.W.2d 448 (Wis. 1971).
Lost Profits: Yes. Lost profits are the appropriate measure of damages when a functionally equivalent rental vehicle is proven to not be available. Balcsik v. Fil-mor Express, Inc., 756 N.W.2d 478 (Wis. 2008). The Plaintiff must show the anticipation of a profit with reasonable certainty. Krueger v. Steffan, 141 N.W.2d 200 (Wis. 1966).
Med Pay/PIP Subrogation
Med Pay: Yes. Auto insurer is subrogated to the rights of the insured, to the extent of Med Pay benefits made by insurer. Wis. Stat. § 632.32(4)(c); Jones v. Aetna Cas. & Surety Co., 567 N.W.2d 904 (Wis. App. 1997). The three (3) year personal injury statute of limitations runs from the date of the insured’s accident. Wis. Stat. § 893.54 (1997).
PIP: Coverage not applicable.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N/A
Common Law Rule: A vehicle owner may be liable for harm resulting from theft of the car if the theft was reasonably foreseeable. Meihost v Meihost, 139 N.W.2d 116 (Wis. 1966).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. Insurers have been cited for not reimbursing sales tax in a total loss claim under Wis. ADC § Ins. 6.11. http://oci.wi.gov/pub_list/pi-057.pdf; http://oci.wi.gov/consumer/autohome-faqauto.htm#claims.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Pedestrian and Crosswalk Laws
Wis. Stat. § 346.23: Traffic must yield the right-of-way to pedestrians in crosswalk. Pedestrians must not run, walk, or ride into path of vehicle when it would be difficult for a vehicle to yield. When a vehicle yields to let pedestrian cross, other vehicles must not pass yielding vehicle.
Wis. Stat. § 346.25: When not in crosswalk, pedestrians must yield right-of-way to vehicles.
Summary: A motorist on highway where there was no crosswalk was not required to exercise a higher degree of care with respect to right-of-way between motorist and pedestrian crossing highway, than was pedestrian. Crawley v. Hill, 34 N.W.2d 123, 253 Wis. 294 (Wis. 1948). Degree of care required of pedestrian crossing street is commensurate with danger he is liable to encounter. Rang v. Klawun, 223 N.W. 121, 198 Wis. 1 (Wis. 1929). Where pedestrian was crossing rural highway without any marked crosswalk, he had an absolute duty to yield right-of-way to motorist. Greene v. Farmers Mut. Auto. Ins. Co., 93 N.W.2d 431, 5 Wis.2d 551 (Wis. 1958).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: A car rental company can recover the FMV of the rental car or repair costs. Wis. Stat. § 344.574(2). It must allow renter and his insurer to inspect the unrepaired car within two days of the accident notification and obtain two estimates. Wis. Stat. § 344.574(4). It may not hold renter liable if it recovers from another driver. Damages limited to the lesser of: (a) the actual and reasonable costs of repair, including discounts, or (b) the FMV of the rental car according to the customary market for the sale of vehicles. Car rental company may not hold a renter or authorized user responsible for loss of use of the rental vehicle. Wis. Stat. § 344.574(2)(b).
Recovery From Third-Party: Nothing specifically regarding rental cars. Loss of use is generally recoverable in Wisconsin. Hellenbrand v. Hilliard, 687 N.W.2d 37 (Wis. App. 2004). The time period for measuring loss of use damages is normally the time the vehicle is out of service. Id. The time period does not necessarily end when the owner purchases a new vehicle. Id. The owner is entitled to loss of use damages relating to the time period after he returned his rental vehicle and until his repaired vehicle is returned to him, even if he purchases a new vehicle in the interim. Id. Loss of use is recoverable even when the owner does not obtain a replacement rental vehicle. Kim v. American Family Mutual Ins. Co., 501 N.W.2d 24 (Wis. 1993). Loss of use is recoverable even when the vehicle is not repairable. Nashban Barrel & Container Co. v. G. G. Parsons Trucking Co., 182 N.W.2d 448 (Wis. 1971).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: Section 344.52 (vehicle rented in Wisconsin) and § 344.52 (vehicle rented outside of Wisconsin) state that while car rental company liability coverage for rented vehicles is mandatory, it is not primary. The Wisconsin Supreme Court has said that even with Wisconsin’s omnibus statute, the policy provided by a car rental company is secondary to the insurance purchased by the renter. Buckett v. State Farm Mut. Auto. Ins. Co., 1988 WL 23174 (Wis. App. 1988). Persons who rent autos for compensation are required to file a bond or policy of insurance with the Department of Transportation. The bond or policy provides that the insurer shall be liable for damages caused by negligent operation of the motor vehicle. Any person who fails to comply with § 344.51 is liable to the extent that they would have been liable had this section been complied with. However, this policy is secondary. A self-insured car rental company’s insurance might be considered primary if the renter’s policy provides excess coverage only. Boatright v. Enterprise Rent-A-Car, 570 N.W.2d 897 (Wis. App. 1997).
Slower Traffic Keep Right
Statute: Wis. Stat. § 346.05(3).
Summary: Drivers must drive in the right lane except when approaching for a lawful left turn or U-turn; passing another vehicle; when the right half of the roadway is closed to traffic while under construction or repair; when overtaking and passing pedestrians, animals, or obstructions on the right half of the roadway; when driving in a particular lane in accordance with signs or pavement markings; or when the roadway is designated for one-way traffic. Slower traffic must keep right. Drivers proceeding slower than the normal speed of traffic must drive in the right.
Sudden Medical Emergencies While Driving
Emergency Doctrine. A driver is not liable for his actions when that person is faced with a sudden emergency he or she did not create. Totsky v. Riteway Bus Serv., Inc., 607 N.W.2d 637 (Wis. 2000).
Court sometimes refers to this defense as “Act of God or Unavoidable Accident Defense” when in the context of a medical emergency, but no specific distinction between the law has been set forth in case law. Eleason v. W. Cas. & Sur. Co., 35 N.W.2d 301 (Wis. 1948).
Suspension of Drivers’ Licenses
Administrative Suspension: The Secretary may suspend the license of any person who fails to report an accident. Wis. Stat. § 344.08. Suspension will remain until the driver complies with the request for security and pays a fee. Wis. Stat. § 344.18.
Judgment: The Secretary will immediately suspend the license/registration of the judgment debtor. Wis. Stat. § 344.25. License may remain suspended for five years after the judgment date, or until the judgment is stayed, satisfied and/or discharged, whichever date comes first. Wis. Stat. § 344.26.
Contact Information: State of Wisconsin, Department of Transportation, Division of Motor Vehicles, Bureau of Driver Services, Uninsured Motorist Unit, P.O. Box 7983, 4802 Sheboygan Avenue, Madison, WI 53707-7995, (608) 266-1249, http://www.dot.state.wi.us/drivers/index.htm.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Wis. Stat. § 632.38; Wis. Stat. § 100.44.
Summary: Automobile repair shops can use after-market parts. Auto policies usually do not specify what parts will be used. If an insured requests after-market parts, they may be responsible for increased repair costs. All non-OEM parts must be labeled with the logo or name of the manufacturer and the logo or name should remain visible after installation if possible. To use non-OEM parts, the insurer must give either written notice through a document either attached to the written statement or by phone, followed by written notice within three days of the phone notice. The notice must inform the insured that the non-OEM parts are warranted by their manufacturer, not the auto manufacturer.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Claims Against Government Bodies or Officers, Agents or Employees: Wis. Stat. §§ 893.80 to 893.83 (1987). Local agencies and their employees are generally immune from liability. Wis. Stat. § 893.80(4). Governmental entities are required to indemnify their employees for suits related to acts committed within the scope of their employment. Wis. Stat. § 895.46. Therefore, it is possible for a plaintiff to indirectly recover damages from a government entity by filing suit directly against an officer or employee.
Notice Deadlines: Notice of Claim served on proper agency must be made within 120 days of date of occurrence. Actual notice exception. Wis. Stat. § 893.80. Normal Statute of Limitations for property damage is six (6) years, but suit against government agency must be filed within three (3) years from date notice is given. Wis. Stat. § 893.80.
Claims/Actions Allowed: Public officer or employee immune for discretionary acts. Barillari v. City of Milwaukee, 533 N.W.2d 759 (Wis. 1995); Wis. Stat. § 893.80 (Wisconsin’s Discretionary Immunity Statute).
Wisconsin Safe Place Statute (Wis. Stat. § 101.11). Employer must provide safe workplace. Conflict as to whether it imposes a ministerial or discretionary duty. Municipality liable for operation of motor vehicle. Wis. Stat. § 345.05.
Whether Safe Place Statute (§ 101.11) requires employers to furnish safe place of employment, Whether it imposes a ministerial or discretionary duty on a government employer is not clear, but is likely discretionary. Spencer v. County of Brown, 573 N.W.2d 222 (Wis. App. 1997). But see Anderson v. City of Milwaukee, 544 N.W.2d 630 (Wis. App. 1996).
Comments/Exceptions: Three exceptions to general rule of immunity: (1) Wilful and wanton activity; (2) Ministerial task; and (3) Employee aware of known and compelling danger that creates duty to act. Barillari, supra.
Ministerial task occurs when act is certain, absolute, and imperative, involving merely the performance of a specific task which the law imposes, prescribes, and defines. If act involves judgment or discretion, then there is immunity because it is a discretionary and not a ministerial act. Bauder v. Delavan-Darien Sch. Dist., 558 N.W.2d 881 (Wis. App. 1996) (decision of teacher to move class indoors was discretionary). Sewer system design and construction is discretionary. Sewer system maintenance is a ministerial. Menick v. City of Menasha, 547 N.W.2d 778 (Wis. App. 1996). No action can be maintained for accumulation of snow or ice on any bridge or highway unless the accumulation existed for three weeks. Wis. Stat. § 893.83.
Damage Caps: Claim against municipality for negligent use of a municipal motor vehicle limited to $250,000. No punitives. Wis. Stat. § 345.05(3). Actions involving government vehicles exempt from registration under Motor Vehicle Code limited to $50,000. Wis. Stat. § 345.05(1)(bm). Limit of $50,000 against any volunteer fire company, political corporation, government subdivision or agency. Wis. Stat. § 893.80(3). Damages against a volunteer fire company are limited to $25,000. Wis. Stat. § 893.80(1)(b)(3).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Claims Against Governmental Bodies, Officers and Employees.Wis. Stat. §§ 893.80-.83 (1987). Qualified immunity for acts done in exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. (i.e., discretion).
Notice Deadlines: Written notice of claim must be served within 120 days. Wis. Stat. § 893.80(1d)(a) (for municipal entities and employees); Wis. Stat. § 893.82(3) (for the State and its employees).
Claims/Actions Allowed: The State and its employees may be sued for “an act growing out of or committed in the course of the discharge of the officer’s, employee’s or agent’s duties.” Wis. Stat. § 893.82(3). With respect to claims against governmental entities, “so far as governmental responsibility for torts is concerned, the rule is liability – the exception is immunity.” Holytz v. City of Milwaukee, 17 Wis.2d 26, 39, 115 N.W.2d 618 (1962).
Comments/Exceptions: Three exceptions to immunity:
(1) Known danger exception: Situation so dangerous that it is clear the police officer or State employee required to act in certain way;
(2) Ministerial duty exception: State employee required by law to act in specific way. (e.g., Wis. Stat. § 346.03 says emergency vehicles given certain privileges when light and siren on); and
(3) Willful and wanton acts.
Lodi v. Progressive, 646 N.W.2d 314 (Wis. 2002).
State employee is liable for performance of ministerial, not discretionary, duties. “A public officer’s duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.” Pries v. McMillon, 784 N.W.2d 648 (Wis. 2010).
Damage Caps: $50,000 for claims against municipal entities and their employees; no punitive damages allowed. Wis. Stat. § 893.80(3). $250,000 for claims against the State and its employees; no punitive damages allowed. Wis. Stat. § 893.82(6). $250,000 limit for negligent operation of any municipal (includes any political subdivision of State) motor vehicles. Wis. Stat. § 345.05.
General Tort Laws/Statutes
Prohibits Intermediate Indemnity. Applies to Construction Contracts, Covenants, or Agreements. Wis. Stat. § 895.447.
Not applicable to insurance contracts or workers’ compensation issues.
Modified Joint and Several Liability. Joint and several liability for defendants who are 51% or more at fault and all acted in concert to cause plaintiff’s damages. Wis. Stat. § 895.045; Richards v. Badger Mut. Ins., 749 N.W.2d 581 (Wis. 2008). Several liability for cases involving strict products liability.
A joint tortfeasor who pays more than his share of the damages can seek contribution against the other tortfeasors. State Farm Mut. Auto. Ins. Co. v. Schara, 201 N.W.2d 758 (Wis. 1972). A settlement by one tortfeasor does not alter the right to contribution. Id. Each party’s degree of fault is allocated by the jury. Wis. Stat. § 895.045; Pachowitz v. Milwaukee Suburban Transport Corp., 202 N.W.2d 268 (Wis. 1972). The issue of contribution may be decided in the original litigation. Johnson v. Heintz, 243 N.W.2d 815 (Wis. 1974). The right to contribution arises when one party has paid more (judgment or settlement) than its just proportion of a joint liability. The right of contribution can not arise out of a prior judgment allocating the comparative negligence between the two parties. Wis. Stat. § 895.045; General Accident Ins. Co. v. Schoendorf & Sorgi, 549 N.W.2d 429 (Wis. 1996). The payment, not the determination of proportional responsibilities, starts the one-year statute of limitations running.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Damages will be reduced by plaintiff’s fault, and barred completely where plaintiff is more negligent than defendant. Wis. Stat. § 895.045(1).
Dog Bite Laws
First Bite (Without Notice of Dangerous Propensity). Dog owner is strictly liable for “full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.” The owner will also pay penalty of “not less than $50 nor more than $500 if the dog injures or causes injury to a person, domestic animal, property, deer, game birds or the nests or eggs of game birds.” Wis. Stat. § 174.02(1)(a).
Second Bite (With Notice of Dangerous Propensity). Dog owner is strictly liable for “two times the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.” No claim based on “second bite” for damages caused by the dog to a domestic animal or to property. Wis. Stat. § 174.02(1)(b).
Economic Loss Doctrine
Majority Rule. The ELD applies in Wisconsin when it “restrict[s] contracting parties to contract rather than tort remedies for recovery of economic losses associated with the contract relationship.” Acuity v. Society Ins. Co., 810 N.W.2d 812 (Wis. App. 2012). A commercial or consumer purchaser of a product may not sue the manufacturer in strict liability or tort for failure of the product unless the failure injures somebody or causes damage to other property. Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 437 N.W.2d 213 (Wis. 1989). The ELD precludes tort recovery when the defective product causes damage to a system in which the product had been integrated as a component part. Midwhey Powder Co. v. Clayton Indus., Inc., 460 N.W.2d 426 (Wis. App. 1990). See introduction to this chart for detailed discussion of Wisconsin law and the ELD.
Property Damage, Theft and Other Tortious Conduct. Liability imposed on parents for child’s damages to property, including school property, child’s violation of ordinance prohibiting graffiti, the value of unrecovered property that was stolen by child; and for willful, wanton, or malicious act of child. Wis. Stat. § 895.035. The limits of liability are $5,000.00 plus court costs for property damage and $20,000.00 plus court costs, disbursements and reasonable attorney’s fees for school property. Child must be under 18-years-old.
Auto Liability. Joint and several liability is imposed on the parents who signs the child’s license application for the child’s negligent or willful misconduct in operating a motor vehicle. Wis. Stat § 343.15. There are no limits of liability. Parents liable if child is under 18-years-old.
Retail Theft. Max recovery for retail theft is set in § 943.51 and is as follows: Retail Value (unless returned unused and undamaged), plus actual damages, plus exemplary damages (not to exceed two times retail value plus actual damages, or $300 per violation).
Tort of Spoliation: Wisconsin has not recognized independent tort actions for the intentional and negligent spoliation of evidence. Estate of Neumann ex rel. Rodli v. Neumann, 242 Wis.2d 205, 244-249, 626 N.W.2d 821, 840 – 843 (Wis. App. 2001).
Adverse Inference: The trier of fact can draw an adverse inference from intentional spoliation of evidence. Id.; Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 80-81, 211 N.W.2d 810 (Wis. 1973). The Supreme Court affirmed the trial court’s refusal to give an adverse inference instruction in the absence of clear, satisfactory and convincing evidence that the defendant had intentionally destroyed or fabricated evidence. Jagmin, supra.
Sanctions: Wisconsin trial courts have discretion in imposing sanctions for spoliation of evidence. However, a party’s duty to preserve evidence is discharged once the party in possession has given reasonable notice of a possible claim, the basis for that claim, the existence of evidence relevant to the claim, and a reasonable opportunity for inspection of the evidence. American Family v. Golke Brothers, 319 Wis.2d 397, 768 N.W.2d 729 (Wis. 2009) State v. McGrew, 646 N.W.2d 856 (Wis. Ct. App. 2002). However, sanctions cannot “be considered unless there is clear and convincing proof that evidence was deliberately destroyed or withheld.” Hoskins v. Dodge County, 642 N.W.2d 213, 228 (Wis. Ct. App. 2002). When deciding whether and how to sanction a party who has destroyed evidence, Wisconsin courts consider the circumstances, including whether the destruction was intentional or negligent, whether comparable evidence is available, and whether at the time of destruction the responsible party knew or should have known that a lawsuit was a possibility. Farr v. Evenflo Co., Inc., 287 Wis.2d 827, 705 N.W.2d 905 (Wis. 2005); Id. In Garfoot v. Fireman’s Fund Ins. Co., 228 Wis.2d 707, 724, 599 N.W.2d 411 (Wis. Ct. App. 1999), the Court held that dismissal as a sanction for destruction of evidence requires a finding of egregious conduct, “which, in this context, consists of a conscious attempt to affect the outcome of litigation or a flagrant knowing disregard of the judicial process.” The spoliation rule does not apply in administrative proceedings. Yao v. Bd. of Regents of Univ. of Wis. Sys., 649 N.W.2d 356, 362 (Wis. Ct. App. 2002).
Statute of Limitations
Personal Property6 YearsWis. Stat. § 893.52(1)*
Personal Injury/Death3 YearsWis. Stat. § 893.54(1m)
Personal Injury/Death/Intentional Tort3 YearsWis. Stat. § 893.57
Personal Injury/Wrongful Death/Motor Vehicle2 YearsWis. Stat. § 893.54(2m)**
Breach of Contract/Oral6 YearsWis. Stat. § 893.43
Breach of Contract/Written6 YearsWis. Stat. § 893.43
Breach of Contract/Sale of Goods6 YearsWis. Stat. § 402.725
Statute of Repose/Products/Personal Injury3 YearsWis. Stat. § 893.54
Statute of Repose/Products/Property Damage6 YearsWis. Stat. § 893.52
Statute of Repose/Real Property7 YearsWis. Stat. § 893.89***
Statute of Repose/Product Liability15 YearsWis. Stat. § 895.047****
Breach of Warranty/U.C.C.6 YearsWis. Stat. § 402.725
Workers’ Comp Third Party Case3 YearsWis. Stat. § 102.29
Strict Product Liability/Personal Injury3 YearsWis. Stat. § 893.54*****
Strict Product Liability/Property Damage6 YearsWis. Stat. § 893.52
Statute of Limitations Exceptions
*Action for property damage (real or personal), which accrues prior to 2/6/16, must be brought within six (6) years after the cause of action accrues. Wis. Stat. § 893.52(1). For actions after 2/6/16 if property damages are caused by a motor vehicle, action must be brought within three (3) years. Wis. Stat. § 893.52(2).
**Death Arising From Accident Involving Motor Vehicle occurring on or after 2/6/16: 2 Years from date of accident – not death. Wis. Stat. § 893.54(2m); Christ v. Exxon Mobil Corp., 866 N.W.2d 602 (Wis. 2015). Death Arising From Accident Involving Motor Vehicle occurring prior to 2/6/16: 3 Years from date of accident.
***Seven (7) years from substantial completion of improvement to real property. Does not apply to the manufacturer or producer of the material used in an improvement to real property. Wis. Stat. § 893.89.
****Bars all claims involving products manufactured more than 15 years before the injury. There are two exceptions: one for damages caused by a latent disease, and the other when the manufacturer promised that the product would last more than 15 years.
*****Wrongful death arising from accident involving motor vehicle is a two (2) year statute of limitations. Wis. Stat. § 893.54(2m).
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 3 Years. Wis. Stat. § 893.54.
Subrogation of Medical and Disability Benefits are allowed. Dufour v. Progressive Classic Ins. Co., 2016 WI 59, ¶ 49, 370 Wis. 2d 313, 338, 881 N.W.2d 678, 690. Made Whole and Common Fund Doctrines apply. Rimes v. State Farm Mut. Auto. Ins. Co., 316 N.W.2d 348 (Wis. 1982); Wis. Retired Teachers Ass’n, Inc. v. Emp. Trust Fund Board, 558 N.W. 2d 83 (Wis. 1970).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Wis. Stat. § 907.02(1). A court’s admission of actuarial tests was proper because the tests were routinely published, had undergone widespread review and criticism, and were commonly used to predict recidivism rates of sex offenders. The court made the threshold determination of the reliability of the tests. In re Commitment of Jones, 911 N.W.2d 97 (Wis. 2018).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. Wis. Stat. Ann. § 968.31; Wis. Stat. Ann. § 968.27.
Evidence obtained as the result of the recording a communication is “totally inadmissible” in civil cases, except when the party is informed that the conversation is being recorded and that evidence from said recording may be used in a court of law. Wis. Stat. Ann. § 885.365(1).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 4 years for personal injury. Discovery Rule applies. Wis. Stat. § 893.54(1m). Wrongful death is 3 years. Wis. Stat. § 893.54(2). Statute of Repose is 15 years. Wis. Stat. § 895.047(5).
Liability Standards: Negligence, Strict Liability, Other.
Fault Allocations: Modified Comparative. Wis. Stat. § 895.045(1).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: No. Wis. Stat. § 895.047(1)(e).
Innocent Seller Statute: Yes.
Joint and Several Liability: Yes, if > 50%. Wis. Stat. §895.045.
Available Defenses: Alcohol/Drugs; Alteration; Assumption of Risk (Contrib.); Inherently Unsafe Products; Presumption; Misuse; Seatbelts; State of the Art; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 3rd
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Statute/Regulation: “Of like kind and quality” does not mean an identical match. If an insurance policy uses those words, it means something that is reasonably comparable. Farmers Auto. Ins. Ass’n v. Union Pac. Ry. Co., 756 N.W.2d 4671 (Wis. App. 2008).
Comments: According to Office of the Commissioner of Insurance document PI-232, if a homeowner’s siding is damaged, the insurer is only required to pay for the siding that was actually damaged.
Condominium/Co-Op Waiver of Subrogation Laws
Associations shall obtain insurance for the property against loss or damage by fire and such other hazards for not less than full replacement value of the property insured and a liability policy covering all claims commonly insured against. There is no required waiver of subrogation rights. Wis. Stat. § 703.17.
Damage to Property Without Market Value
Service Value: Measure of damages to property without market value is reasonable cost of repairs necessary to restore property to its former condition. Wisconsin Tel. Co. v. Reynolds, 87 N.W.2d 285 (Wis. 1958).
Intrinsic Value: While recovery for a sentimental value cannot generally be had, the loss of such things as family pictures and heirlooms, which cannot be replaced and are valuable only to the owner, may be compensated to the extent of the reasonable special value of such articles to the owner. Harvey v. Wheeler Transfer & Storage Co., 277 N.W. 627 (Wis. 1938) (citing Shewalter v. Wood, 183 S.W. 1127 (Mo. App. 1916)).
Sentimental Value: While recovery for a sentimental value cannot generally be had, the loss of such things as family pictures and heirlooms, which cannot be replaced and are valuable only to the owner, may be compensated to the extent of the reasonable special value of such articles to the owner. Harvey v. Wheeler Transfer & Storage Co., 277 N.W. 627 (Wis. 1938) (citing Shewalter v. Wood, 183 S.W. 1127 (Mo. App. 1916)).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Wis. Stat. § 704.07(3)(a) makes a tenant automatically liable to the landlord for damage to property caused by the tenant’s negligence. A tenant is precluded from claiming co-insured status under the landlord’s fire insurance policy so as to avoid subrogation where the lease is silent as to fire insurance coverage. Bennett v. West Bend Mut. Ins. Co., 200 Wis.2d 313, 546 N.W.2d 204 (Wis. App. 1996).
The statute reads as follows: “Wis. Stat. § 704.07 (3) Duty of Tenant. (a) If the premises are damaged by the negligence or improper use of the premises by the tenant, the tenant must repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the repair or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant.”
As a general rule, an insurer has no right of subrogation or indemnification against its own insured. Rural Mut. Ins. Co. v. Peterson, 395 N.W.2d 776 (Wis. 1986). However, neither statute nor public policy prohibits provisions in motor vehicle policies allowing insurer reimbursement from insured for amounts paid by insurer to third party. Id. Subrogation against an insured is permitted if the insured intentionally causes damage to an insured property, such as through arson. Madsen v. Threshermen’s Mut. Ins. Co., 439 N.W.2d 607 (Wis. Ct. App. 1989). In Peterson, after Rural insured Peterson’s fleet of trucks, Peterson purchased an additional truck and leased it to Beguelin, who acquired his own insurance for the truck. Although Rural never explicitly agreed to insure the leased truck, Rural was dragged into litigation involving the leased truck after it was involved in an accident and a court ruled Rural technically covered the truck under a blanket coverage provision included in the original policy it issued to Peterson. Rural subsequently settled the lawsuit but Peterson refused to sign off on the settlement because the settlement did not include any language indicating that Rural would drop any reimbursement claims it had against Peterson. The original contract between Peterson and Rural contained a clause that allowed Rural to seek reimbursement from Peterson for any damages Rural was required to pay for only because a financial responsibility law of the state required Rural to make a payment. Rural then sued Peterson seeking reimbursement for the settled lawsuit. The court ruled in Rural’s favor, reasoning that the reimbursement clause in the original contract between Peterson and Rural did not violate statute or public policy.
Under the Wisconsin statute, a court can impose full or partial restitution against a criminal defendant, to a “victim” of their crime. Wis. Stat. § 973.20 (1r). Case law on point has determined that an insurer may be able to recover restitution as a “victim” of a criminal defendant’s criminal conduct. State v. Baker, 626 N.W.2d 862 (Wis. Ct. App. 2001). Section 973.20 (5)(d) specifically provides, “In any case, the restitution order may require that the defendant do one or more of the following: … If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensation under this section.”
Made Whole Doctrine
The Made Whole Doctrine prevents competition between the injured party and subrogated party, and insurer, when the injured party’s damages exceed a limited pool of funds from which recovery may be had; under the Made Whole Doctrine, the injured party should be the first to tap into the limited pool of funds and recover on any loss, and when someone can not be fully paid, the loss should be borne by the subrogee, the insurer. Fischer v. Steffen, 2011 WL 1992003 (Wis. 2011). Wisconsin courts have sometimes referred to the Made Whole Doctrine as the “Anti-Subrogation Rule” or the “Rimes Made Whole Doctrine.” Rimes v. State Farm Mut. Auto. Ins. Co., 316 N.W.2d 348 (Wis. 1982). The premise is that subrogation ordinarily does not arise until the underlying debt or loss has been fully paid. When a made whole issue arises, Wisconsin holds a hearing referred to as a “Rimes hearing,” in which a mini trial is held. In this hearing, the court determines various items of damages which a jury would have found to be sufficient to make the insured whole. Id. The test of being made whole depends on whether the insured has been completely compensated for all types of damages, including personal injury and property damage. Valley Forge Ins. Co. v. Home Mut. Ins. Co., 396 N.W.2d 348 (Wis. Ct. App. 1986).
Not only has Wisconsin adopted the Made Whole Doctrine, but it is sometimes considered to be the “mother of all made whole states” because its early decisions on the Made Whole Doctrine and its procedures with regard to determination of how and when an insured is made whole, have been used as an example by a large number of other states. In Wisconsin, an insured must be made whole before an insurer may recover anything from the tortfeasor. Garrity v. Rural Mut. Ins. Co., 253 N.W.2d 512 (Wis. 1977). The Made Whole Doctrine does not apply in an automobile property damage subrogation case where the insured is pursuing only personal injury damages and the property insurer is not competing with its insured for a limited pool of funds. Paulson v. Allstate Ins. Co., 665 N.W.2d 744 (Wis. 2003).
In Valley Forge Ins. Co., the Court of Appeals held that the insured has one cause of action, which includes both personal injury and property damage claims. It held that where the insured is not made whole for his bodily injury claim out of the tortfeasor’s bodily injury liability limits, the auto carrier cannot subrogate for property damages it paid, and the insured is entitled to the property damage liability limits, even if it means he will be paid twice for his auto collision loss. Id. The Court rationalized that as between the subrogated carrier and its insured, “where either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.”
Early case decisions indicated that if an insured settled with a third party, the subrogated carrier could still proceed against a third party on its own subrogation claim. Mutual Service Cas. Co. v. Am. Family Ins. Group, 410 N.W.2d 582 (Wis. 1987); Blue Cross & Blue Shield United of Wis. v. Firemen’s Fund Ins. Co. of Wis., 411 N.W.2d 133 (Wis. 1987). More recent decisions, however, have held that a subrogated carrier cannot recover its subrogated amounts when an insured settles with the defendant without involving the subrogated carrier, where the insured requests a Rimes hearing, the subrogated carrier has an opportunity to participate, and the court determines that the settlement did not make the insured whole. Schulte v. Frazin, 500 N.W.2d 305 (Wis. 1992).
While early decisions also determined that an insured was made whole when he received compensation in a settlement agreement covering all his losses, less an amount corresponding to his contributory negligence, a later Supreme Court decision in an unusual “tie vote,” obfuscated this result when three Justices voted in favor of granting a pro rata subrogation recovery where contributory negligence was a factor, and three Justices held no subrogation would be allowed where there was contributory negligence, because the insured could never be totally “made whole.” Sorge v. National Car Rental Sys., Inc., 512 N.W.2d 505 (Wis. 1994); Ives v. Coopertools, 559 N.W.2d 571 (Wis. 1997). The Wisconsin Supreme Court has also indicated, contrary to the rule in the majority of other states, that the Made Whole Doctrine can trump express Plan provisions to the contrary. Drinkwater v. American Family Mut. Ins. Co., 714 N.W.2d 568 (Wis. 2006).
Until recently, the precise application of the Made Whole Doctrine in death cases was still a question mark in Wisconsin. In 2005, the Wisconsin Supreme Court issued a significant “made whole” decision in which Gary L. Wickert argued on behalf of the subrogated insurer. In Petta v. ABC Ins. Co., 672 N.W.2d 146 (Wis. 2005), Dayle Petta was killed in an auto accident which totally destroyed her car. Petta was survived by her two adult children, who filed a wrongful death suit against the defendant driver. Petta had insurance through Travco Insurance Company, which paid benefits to its insured for the damages to her car, as well as medical and funeral expenses under its Med Pay provisions. Travco sought a subrogation recovery of the property damage and Med Pay benefits it had paid to Petta’s estate. The two adult Petta children settled for policy limits of $250,000, plus an additional $30,000 paid by the defendant personally. As part of the settlement, the Pettas agreed to indemnify the third party for any subrogation claim of Travco. Travco acknowledged that the $280,000 did not make the Petta children “whole” for their damages, but argued that the Made Whole Doctrine should not apply because the Petta children were not Travco “insureds.” Travco maintained that Rimes applied only between an insurer and its insured, and therefore didn’t apply in wrongful death cases such as this.
The Pettas brought a Rimes hearing and the trial court found that they had not been made whole, denying Travco’s subrogation rights. Travco appealed and the Court of Appeals reversed, holding that the Made Whole Doctrine did not apply in wrongful death cases. The Pettas appealed to the Wisconsin Supreme Court who reversed the Court of Appeals decision, holding that the Made Whole Doctrine did apply in wrongful death cases. Id. The Court held that equitable considerations controlled in subrogation situations, necessitating that wrongful death plaintiffs be made whole before the insurance company of the deceased could subrogate – even though the plaintiffs were not “insureds” of the subrogated carrier. The Supreme Court negated Travco’s subrogation interest.
The Pettas also argued that they were entitled to receive the value of their mother’s destroyed car, but Travco maintained that the Made Whole Doctrine was not applicable here because the car belonged to the mother, and no estate had ever been set up for her. The Court held that § 895.04(6) empowered the Pettas to control the settlement of any claims the estate had against the defendant, and therefore, they could “waive and satisfy” the cause of action the estate had against the defendant for the value of the insured vehicle, even though they were not the “insured.” The Court further held that the Petta children did not pay for the medical and funeral expenses (Travco did), they had no ownership rights in those damages. However, the Court also went on to declare that the claim for these damages was inseparable from the Pettas’ own claims, Travco’s subrogation rights in these damages was extinguished because the Pettas were not made whole.
Not all the made whole news out of Wisconsin is bad, however. In 2008, the Wisconsin Supreme Court decided the case of Muller v. Society Ins., 750 N.W.2d 1 (Wis. 2008). Muller involved a fire which caused $697,981.58 in damage to Bruce and Karen Muller’s sporting goods store in Milltown, Wisconsin. The fire was caused by the negligence of an electrician named George Jerrick, whose liability carrier, United Fire and Casualty, had $1 million limits. The Mullers’ property insurer, Society, paid out its policy limits of $407,378.88 – leaving the Mullers with an uninsured loss of $290,602.30. The Mullers sued Jerrick and United to recover this uninsured loss and Society entered the lawsuit, assisted and claimed subrogation rights. At mediation, Society reached a tentative settlement with Jerrick and United for $190,000, conditioned upon the Mullers settling with Jerrick or resolving the case at trial. The Mullers later settled their claim for $120,000 – $170,602.70 less than their uninsured loss. The insured was clearly not made whole.
The Mullers asked the court to void Society’s settlement to the extent that the Mullers had not been made whole under the Rimes Made Whole Doctrine in Wisconsin – a 1982 case which provides for a hearing to determine whether an insured has been whole before a subrogation claim is allowed. The Mullers wanted to recover their $170,602.70 shortfall out of the $190,000 Society subrogation settlement. The trial court held that because the Mullers and Society were in competition for the “limited” pool of $310,000 (combination of both settlements), it required Society to disgorge part of their subrogation recovery in order to make the Mullers whole. Society appealed. The Court of Appeals reversed the trial court decision, holding that the $1 million liability policy was “far more than adequate to cover all the claims.” It stated that the Mullers “made a conscious choice to accept less than their losses…[that]…cannot plausibly be tied to any limited funds.” The Mullers then appealed to the Wisconsin Supreme Court. The Wisconsin Supreme Court affirmed the Court of Appeals decision, holding for the first time that the Made Whole Doctrine does not apply in situations where the insured settles with the tortfeasor for an amount, which when combined with the carrier’s subrogation interests, does not exceed the limits of available third-party liability limits.
Society was allowed to keep its entire subrogation recovery from the third party. The Court wrote a long majority opinion, which walked through the long history of the Made Whole Doctrine in Wisconsin. The Court did not abandon the equitable basis of subrogation and did not backtrack from its position that the Made Whole Doctrine cannot be contracted away via policy language. This leaves some unanswered made whole questions. Some opponents of subrogation may argue that the case only applies to situations where the insured has settled independently of the subrogated insurer. They might argue that the Made Whole Doctrine should still apply to a settlement made by the insured to which a subrogated insurer lays claim to a portion in satisfaction of its rights of reimbursement or subrogation. However, the Muller decision seems clear that, under any circumstances, the Made Whole Doctrine will not apply if the following conditions exist: (1) The subrogated insurer has fully satisfied its obligations to its insured under an insurance contract; (2) The insured has had an opportunity to settle its claim with the tortfeasor and the tortfeasor’s liability insurer; (3) The pool of settlement funds available to the insureds exceeds the total claims of both the insureds and the subrogated insurer; and (4) The insured settles its claim with the tortfeasor, even though the settlement, together with the subrogated insurer’s policy claim payment, does not satisfy the insured’s total claim.
The key is the existence of competition for a limited pool of funds. We know that this decision doesn’t stand for the proposition that an insured is made whole by merely settling a case. That was made clear in Rimes. But the Muller decision seems to indicate that where the liability limits of the tortfeasor exceed the combined claims of the insured and subrogated insurer and the insured settles for a lesser amount anyway, the Made Whole Doctrine will not apply.
The Muller Court also noted that as part of its settlement, the Mullers did not indemnify the tortfeasor or its insurer against the subrogated claim, as sometimes occurs in settlements. The Supreme Court did state that such an indemnification agreement “limits available funds,” because a liability carrier will always attempt to limit its exposure and will be more willing to settle with the insured if it can eliminate the subrogated carrier’s rights of recovery and/or reimbursement in the process. Therefore, if the settlement is not made whole, which includes an indemnification agreement, the insured has claimed the available pool of settlement funds, and the insurer may be barred from subrogating as a result of the Made Whole Doctrine.
Society was entitled to act on its subrogation rights so long as it recognized the priority of its insured to compete for available funds. Had there been an insufficient pool of funds, Society would have been out of luck. In language that should be quoted by subrogation professionals regularly from now on, the Court in Muller stated: “Where policy limits are sufficient to cover all related claims, the insured cannot settle for less than policy limits and then argue that ‘the pie was not big enough’ to make him whole.” Id. This should be the rule of the case that subrogation professionals argue, leaving it to the other side to parse the individual facts of the case and distinguish their case from the facts in Muller.
Wisconsin law states that subrogation rests upon principles of equity. Id. The only exception to this rule is legislatively-sanctioned subrogation that overrides subrogation’s equitable foundation. Petta, supra; Waukesha County v. Johnson, 320 N.W.2d 1 (Wis. App. 1982). While common law subrogation requires that the insured be made whole, this is apparently not the case with statutory subrogation. Subrogation professionals are urged to argue that both UM/UIM subrogation and Med Pay subrogation are statutory rights of subrogation because they are authorized by § 632.32(4)(c), which provides as follows: “(c) Unless an insurer waives the right to subrogation, insurers making payment under any of the coverages under this subsection [uninsured motorist, underinsured motorist, and medical payments coverages] shall, to the extent of the payment, be subrogated to the rights of their insureds.” Wis. Stat. § 632.32(4)(c).
It is true that Waukesha County v. Johnson dealt with § 49.65, which provided for statutory subrogation and a lien, and read as follows: “(2) Subrogation. The department of health services, the department of children and families, a county, or an elected tribal governing body that provides any public assistance under this chapter or under s. 253.05 as a result of the occurrence of an injury, sickness, or death that creates a claim or cause of action, whether in tort or contract, on the part of a public assistance recipient or beneficiary or the estate of a recipient or beneficiary against a third party, including an insurer, is subrogated to the rights of the recipient, beneficiary or estate and may make a claim or maintain an action or intervene in a claim or action by the recipient, beneficiary, or estate against the third party. Subrogation under this subsection because of the provision of medical assistance under subch. IV constitutes a lien, equal to the amount of the medical assistance provided as a result of the injury, sickness, or death that gave rise to the claim. The lien is on any payment resulting from a judgment or settlement that may be due the obligor. A lien under this subsection continues until it is released and discharged by the department of health services.” Wis. Stat. § 49.89 (renumbered from § 49.65).
Nonetheless, an argument should be made that statutory subrogation is not subject to the Made Whole Doctrine, as there has been no clear expression of intent by Wisconsin courts on this subject. The application of the Collateral Source Rule, subrogation, and the “Made Whole” Doctrine depends heavily upon the facts presented. Paulson v. Allstate Ins. Co., 665 N.W.2d 744 (Wis. 2003).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Common law CSR. CSR has long prevented reduction of verdict because of collateral sources or evidence of collateral sources. Cunnien v. Superior Iron Works, 184 N.W. 767 (Wis. 1921); Leitinger v. DBart, Inc., 736 N.W.2d 1 (Wis. 2007).
Recovery Of Medical Expenses Rule:
Private Insurance: Plaintiff allowed to recover the reasonable value of medical services billed without consideration of payments made by plaintiff’s health insurer. Paid amounts inadmissible. Leitinger v. DBart, Inc., supra. Motorist was entitled to seek recovery of reasonable value of medical services, without limitation to amounts paid by subrogated auto carrier, and (2) presentation of inadmissible evidence of payments made by motorist’s insurers was reversible error. Koffman v. Leichtfuss, 630 N.W.2d 201 (Wis. 2001).
Medicare/Medicaid: CSR applied to Medicare and Medicaid benefits. Thoreson v. Milwaukee & Suburban Transp. Corp., 201 N.W.2d 745 (Wis. 1972). Reasonable value of medical costs is not always the actual expense. Because the test is the reasonable value, not actual expense, the plaintiff need not incur an actual expense. Ellsworth v. Schelbrock, 611 N.W.2d 764 (Wis. 2000).
Medical Malpractice: Evidence of collateral source admissible in medical malpractice. Wis. Stat. Ann. § 893.55(7).
Employee Leasing Laws
Section 102.29 provides that no employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary agency for the employee’s services. Wis. Stat. § 102.29(6). Furthermore, no employee who is loaned by his or her employer to another employer and who makes a claim for workers’ compensation may make a claim or maintain an action in tort against the employer who accepted the loaned employee’s services. Wis. Stat. § 102.29(7). In Rivera v. Alpine Insulation and West Bend Mutual Ins. Co., 2018 WL 334447 (Wis. App. 2018), the court held that where a temporary employee does not file a worker’s compensation claim, the Exclusive Remedy Rule will not bar a tort suit against the special employer to whom he was temporarily loaned. By logical extension, the same would hold true for borrowed servant situations (Wis. Stat. § 102.29(7)), and employee leasing situations (Wis. Stat. § 102.29(6)(b)(1)).
Hospital Lien Laws
Statute: Wis. Stat. § 779.80.
Perfecting Lien: A lien is void if the following steps are not followed. To perfect hospital lien:
(1) Lien must be filed in the clerk of courts for the county in which the hospital is located or county where third-party suit is pending.
(2) Lien must be filed before any payment or recovery from third-party claim, and no later than sixty (60) days after patient is discharged.
(3) Notice must contain name and address of patient, date and location of accident, name and location of hospital, and name and address of tortfeasor, if known.
(4) Within 10 days after filing lien, hospital must send copy of lien notice to patient and tortfeasor and his liability carrier (if they can be determined by reasonable diligence) by certified or registered mail.
Comments: Only charitable hospitals may file a lien. § 779.80(1); Spence v. Regions Hospital, 384 F.Supp.2d 1313 (W.D. Wis. 2005). Hospital has lien on any cause of action or claim against tortfeasor. § 779.80(2). Section 779.80 may be broad enough to allow lien against UM/UIM and Med Pay benefits. No case law to date. Clerk of the court must enter hospital lien in judgment and lien docket. § 779.80(3)(a). Once lien is properly perfected, a release will not be valid against a perfected hospital lien and third-party carrier remains liable to hospital for amount of its lien for one year. § 779.80(4). Lien is subordinated to attorney’s fees and actual taxable court costs and disbursements. § 779.80(5). Lien does not attach to workers’ compensation. § 779.80(6). If attorney does not disclose lien to third-party carrier, carrier and/or its attorney should ascertain if any liens. Hospital can enforce a hospital lien on a Medicaid recipient’s third-party settlement as an alternative to billing Medicaid. Gister v. American Family Mut. Ins. Co., 818 N.W.2d 880 (Wis. 2012).
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: Wisconsin law requires that all contractors and subcontractors “shall be included under the wrap-up program.” Wis. Adm. Code. § 80.61(3)(b)(5).
Statutory Employer Law: Wisconsin law requires that an owner or contractor be responsible for compensation benefits to the employee of a contractor or subcontractor where employer fails to do so. Wis. Stat. § 102.06. Statutory employer does not enjoy exclusive remedy immunity. Kaltenbrun v. City of Port Washington, 457 N.W.2d 527 (Wis. App. 1990).
Comments: A 2005 Wisconsin federal court decision was the nation’s first attack on the Exclusive Remedy Rule in wrap-up programs. Pride v. Liberty Mut. Ins. Co., 2007 WL 1655111 (E.D. Wis. 2007). Exclusive Remedy Rule does not protect owners and general contractors involved in an OCIP.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? No.
Statute/Case Law: Vogel v. Liberty Mut. Ins. Co., 571 N.W.2d 704 (Wis. App. 1997).
Rule Summary: In an action brought by an employer against a tortfeasor to recover lost premium discounts and the amount of increased workers’ compensation premiums resulting from a work-related injury caused by the tortfeasor, the Wisconsin Court of Appeals has held that denial of such a cause of action is justified on multiple levels. Allowing such damages to an employer for economic consequences arising from injuries to an employee would “enter a field with no sensible stopping point.”
Which Workers’ Compensation “Benefits” Can Be Subrogated?
In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and the like. They pay significant attorney’s fees on permanency awards and incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Which of these benefits are recoverable in workers’ compensation subrogation remains a point of contention between trial lawyers and subrogation professionals. One Wisconsin Circuit court opinion with little precedential value has indicated that the litmus test ought to be whether the payment benefited the employee or the carrier. Witt v. West Bend Mut. Ins. Co., 2005 WL 3388157 (Wis. Cir. Ct. 2005).
Wisconsin’s workers’ compensation subrogation statute is found at § 102.29(b)(2) provides as follows:
- Out of the balance remaining after the deduction and payment specified in subd. 1., the employer, the insurance carrier, or, if applicable, the uninsured employers fund or the work injury supplemental benefit fund shall be reimbursed for all payments made by the employer, insurance carrier, or department, or which the employer, insurance carrier, or department may be obligated to make in the future, under this chapter, except that the employer, insurance carrier, or department shall not be reimbursed for any payments made or to be made under s. 102.18(1)(b)3. or (bp), 102.22, 102.35(3), 102.57, or 102.60.
Payments made by the employer or its insurance carrier for penalties under §§ 102.81(1)(bp) (bad faith), 102.22 (delay), 102.35(3) (refusal to rehire), 102.57 (safety violation), and 102.60 (illegal employment of a minor) are not recoverable from third-party proceeds. But exactly what is recoverable remains unclear.
It should be remembered that the Wisconsin formula may only be deviated from with the unanimous agreement of all parties. Skirowski v. Employers Mut. Cas. Co., 462 N.W.2d 245 (Wis. 1990), rev. denied, 465 N.W.2d 656. In addition, any settlement of the third-party claim is void under the statute unless the settlement and distribution of the proceeds is approved by the court before which the action is pending, or if no action is pending, then by a court of record or the department.
With regard to reimbursement of workers’ compensation case attorneys’ fees, § 102.29 states that the worker’s compensation carrier “shall be reimbursed for all payments made by the employer, insurance carrier, or department, or which the employer, insurance carrier, or department may be obligated to make in the future under this chapter…” If $20,000 is paid to an employee as a disability/indemnity benefit, the fact that the employee hired an attorney to recover that amount as opposed to not hiring an attorney, was the employee’s choice and it shouldn’t affect the carrier’s lien or what the carrier is entitled to recover in the third-party liability action. Since attorney fees are paid “under this chapter”, those payments arguably should be included in the subrogation claim.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: Wis. Stat. § 102.29
Waiver Allowed? Reimbursement rights under § 102.29 are distinct from subrogation. Subrogation is only one of the ways employers can recover such payments. Legislature intended § 102.29 to be independent cause of action, not a type of subrogation. Campion v. Montgomery Elevator Co., 493 N.W.2d 244 (Wis. App. 1992).
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: Not applicable. Even If the waiver of subrogation is valid as written in the contract, it does not apply. Campion v. Montgomery Elevator Co., 493 N.W.2d 244 (Wis. App. 1992).
Other Applicable Law: Reimbursement under Wis. Stat. § 102.29 is a wholly statutory, legislatively created substitute for common law. Larson v. DILHR, 252 N.W.2d 33 (Wis. 1977). Employer cannot waive subro without insurer’s consent (endorsement). Campion v. Montgomery Elevator Co., 493 N.W.2d 244 (Wis. App. 1992).
Statute of Limitations: 3 Years. Wis. Stat. § 102.29.
Can Carrier Sue Third Party Directly: Yes.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: (1) Attorney’s Fees/Costs; (2) 1/3 Balance to Plaintiff; (3) Carrier Reimbursed Fully; and (4) Balance to Plaintiff’s Credit.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: No.
Future Credit: Yes, a carrier can recover futures if it prosecutes the third-party case.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on illegal aliens as employees, but it does not exclude them. Wis. Stat. § 102.07(1).
Case Law: Arista-Rea Kenosha Beef, 1999 WL 370027 (Wis. L.I.R.C. 1999); Zaldivar v. Hallmark Drywall, 2014 WL 1647891 (Wis. L.I.R.C. 2014); Amalga Composites, Inc. v. Labor Indus. Review Comm’n, 902 N.W.2d 809 (Wis. App. 2017).
Comments/Explanation/Other: Arista-Rea held that you cannot terminate disability benefits when an illegal immigrant is terminated, so long as the employee is still temporarily disabled. Even though undocumented aliens have no legal right to employment, they are entitled to benefits. Zaldivar held an undocumented worker does have a Loss of Earning Capacity and that one factor in determining that loss would be his illegal status. Amalga Composites, Inc. firmly places on the employer the burden of proof with respect to immigration status.