Author: Hamilton

Attempts to Repeal Asbestos Trust Reforms Die in Committee

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Assembly Bill 862, authored by Rep. Dana Wachs (D-Eau Claire), and Senate Bill 723, authored by Sen. Kathleen Vinehout (D-Alma), would have reversed a major WCJC priority from last session relating to fraud in asbestos lawsuits involving personal injury trusts. WCJC opposed AB 862/SB 723. Both bills died in committee.

On March 27, 2014, Gov. Scott Walker signed 2013 AB 19 into law as 2013 Wisconsin Act 154. The act provides for greater transparency by:

  • Requiring asbestos plaintiffs to disclose any and all claims that they have filed or will file with asbestos trust funds, along with all of the documents and information that support the trust claims.
  • Requiring judges to admit trust claims and supporting materials into evidence at trial; prohibiting plaintiffs from spuriously alleging that trust claims and their supporting documents are privileged.
  • Providing defendants with a powerful tool to ensure that plaintiffs file and disclose all possible claims with asbestos trusts. Act 154 authorizes defendants to identify trust claims that the plaintiff could and should file. If a judge agrees, the case is stayed until that claim is filed and disclosed.

 

For more information on this issue go to WCJC’s page on Limiting Double-Dipping in Personal Injury Cases.

Worker’s Compensation Bill Signed into Law

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On February 29, 2016, Governor Scott Walker signed the Worker’s Compensation “Agreed Upon” Bill for 2016, Assembly Bill 724, into law as 2015 Wisconsin Act 180. Originally introduced by Sen. Steve Nass (R-Whitewater) and Rep. John Spiros (R-Marshfield) in January 2016, the bill is a result of a consensus recommendation from labor and management representatives on the Wisconsin Worker’s Compensation Council. Most provisions in Act 180 became effective on March 2, 2016; however, certain provisions relating to judicial review and administrative review of Worker’s Compensation decisions will become effective on July 1, 2016.

A more controversial Worker’s Compensation bill, Assembly Bill 501, was also authored by Rep. Spiros. Developed outside of the Worker’s Compensation Council, the bill contained controversial provisions, including contributory negligence concepts that some believed undermine the foundation of a Worker’s Compensation program. AB 501 did not advance this session and is dead.

Dies in Committee: Medical Malpractice Claims

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Under current law, as stated in Estate of Wells v. Mt. Sinai Medical Center, 183 Wis. 2d 677 (1994), a parent does not have the right to recover for the loss of society and companionship of an adult child who dies as the result of medical malpractice. Sen. Nikiya Harris Dodd (D-Milwaukee) and Rep. Dana Wachs (D-Eau Claire) introduced Senate Bill 378/Assembly Bill 498 which would provide that a parent has the right to recover for loss of society and companionship if the parent’s adult child dies as the result of medical malpractice, and the adult child had not reached the age of 27 when he or she died. WCJC opposed SB 378/AB 498.

Senate Bill 378 was referred to the Senate Committee on Judiciary and Public Safety and Assembly Bill 498 was referred to the Assembly Committee on Judiciary. No committee action was taken and both bills died in committee. WCJC opposed this legislation.

Dies in Committee: Loss-of-Use Liability for Rental Motor Vehicles

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Under Assembly Bill 672/Senate Bill 495, introduced by Rep. Nancy VanderMeer (R-Tomah) and Sen. Chris Kapenga (R-Delafield), would allow a vehicle rental company to hold a renter or driver of a rented vehicle liable for loss of use of the vehicle under certain circumstances. Under these bills, a rental company may hold a renter or driver of a rented private passenger vehicle liable for loss of use that results from an accident for which the renter or driver is cited or charged with inattentive driving, reckless driving, operating while intoxicated, homicide by negligent operation or intoxicated use of a vehicle, or a failure to yield violation that resulted in bodily harm or death. Loss of use would be calculated using the daily rental rate stated in the rental agreement for the vehicle, multiplied by the number of loss-of-use days, not to exceed 30 days.

Little action was taken on these bills this session. SB 495 only received a public hearing before dying in the Senate, and there was no hearing or committee action on AB 672.

Awaiting Governor’s Signature: Immunity for Private Campgrounds

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Assembly Bill 174/Senate Bill 131, introduced by Rep. Joel Kitchens (R-Sturgeon Bay) and Sen. Devin LeMahieu (R-Oostburg), as amended, would create immunity from civil liability for a private campground in certain circumstances. WCJC supported this legislation that passed the Assembly on February 16, 2016, and the Senate on March 16. The enrolled legislation now awaits gubernatorial approval.

Under the legislation, as amended by substitute amendments, a private campground owner, operator or employee is immune from civil liability if a person is injured or killed, or property is damaged, as a result of an inherent risk of camping. “Inherent risk of camping” means a danger or condition that is an integral part of camping, including dangers posed by any of the following:

  • Features of the natural world, such as trees, tree stumps, roots, brush, rocks, mud, sand, and soil
  • Uneven or unpredictable terrain
  • Natural bodies of water
  • Another camper or visitor at the private campground acting in a negligent manner
  • A lack of lighting, including lighting at campsites
  • Campfires in a fire pit or enclosure provided by the campground
  • Weather
  • Insects, birds, and other wildlife

 

The legislation would not provide immunity if the person seeking immunity does any of the following:

  • Intentionally causes the injury, death, or property damage.
  • Acts with a willful or wanton disregard for the safety of the party or the property damaged. “Willful or wanton disregard” means conduct committed with an intentional or reckless disregard for the safety of others.
  • Fails to conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents, or is otherwise in lawful control of or possession.

Signed into Law: Liability Limits for Ski Area Operators

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Governor Scott Walker signed Assembly Bill 596/Senate Bill 463 into law as 2015 Wisconsin Act 168 on March 1, 2016. The new statute, introduced by Rep. Adam Jarchow (R-Balsam Lake) and Sen. Duey Stroebel (R-Saukville), changes the term “snow sport” to “alpine sport” and adds “biking” to the list of activities included in the term. WCJC supported these limits on liability for ski area operators from biking accidents.

Previous law imposed proportional liability for an injury or death resulting from participation in a “recreational activity,” including riding a bicycle, on a premises that is open to the public for such purposes. However, under certain circumstances, ski area operators have immunity from liability for injury or death resulting from participation in a “snow sport” within a ski area. Among other changes, the new law reconciles these requirements for bicycling within ski areas.

An individual who participates in a recreational activity assumes the “risks inherent in the recreational activity of which the ordinary prudent person is or should be aware” and must satisfy certain behavioral duties. [s. 895.525, Stats.] If a participant is injured or killed, the owner of the premises may be liable, but the damages that may be collected from the owner are reduced in proportion to the amount of negligence attributable to the participant.

An individual who participates in a snow sport within a ski area assumes certain risks and must satisfy certain duties. Likewise, ski area operators must satisfy certain duties related to safety and to give notice of assumed risks. A ski area operator that satisfies all of the required duties owes no further duty of care to a participant and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in a snow sport.

The act removes biking from the definition of “recreational activity,” defines the risks assumed by individuals who participate in biking, and establishes the duties participants must satisfy. It also establishes the duties of ski area operators related to biking. Under the act, a ski area operator that satisfies all of the required duties owes no further duty of care to a participant who engages in biking and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in an alpine sport.

Signed into Law: Statutes of Limitation on Claims Involving Property Damage and on Claims Involving from Motor Vehicle Accident

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Governor Walker signed Assembly Bill 223/Senate Bill 149 (Rep. John Spiros (R-Marshfield)/Sen. Frank Lasee (R-De Pere)) into law as 2015 Wisconsin Act 133 on February 4, 2016. The new law changes the six-year statute of limitation to three years for actions on a motor vehicle insurance policy and for actions to recover for property damage or death arising from a motor vehicle accident. See Wisconsin Legislative Council Act 133 memo on additional changes.

Dies in Committee: Reviver Statute – Statute of Limitations for Sexual Contact with a Child

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Under current law, the time a person has to bring an action for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35. Sen. Julie Lassa (D-Stevens Point) and Rep. Evan Goyke (D-Milwaukee) introduced Senate Bill 262/Assembly Bill 348 which would provide a three-year reviver window for plaintiffs to file childhood sexual abuse claims, regardless of the previous expiration of the statute of limitations.

The legislation had bipartisan support, with Republican Reps. Horlacher, A. Ott, Neylon, Rohrkaste, and Sen. Olsen signing on as co-authors. But both bills died in committee. WCJC opposed the legislation.

For over 100 years, the Wisconsin Supreme Court has consistently rejected reviver statutes as unconstitutional. The court subscribes to the view that the expiration of a statute of limitations vests a property right in a defendant. The resurrection of a time-barred claim therefore amounts to a taking of property without due process of law.

Despite the appalling nature of these abuses, WCJC agrees with the court’s rationale and believes the proposed reviver statute would lay a foundation for suspending other statute of limitations. This, in turn, brings uncertainty and unfairness to our civil justice system.

For more on the constitutional issues arising from reviver statutes, see this legal memo provided in the context of prior Wisconsin reviver legislation.

Collateral Source (Phantom Damages) Reform Fails to Pass

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In December 2015, Sen. Chris Kapenga (R-Delafield) and Rep. Mike Kuglitsch (R-New Berlin) introduced Senate Bill 405/Assembly Bill 539 relating to how a jury determines damages relating to medical costs arising from injuries. The bills would allow the introduction into evidence of both the amounts billed and the amounts paid for such services. WCJC supported this legislation that failed to pass this session.

The current Wisconsin collateral source rule holds that the amount billed by medical providers is the measure of the reasonable value of medical expenses in personal injury actions, and the defendant may not introduce evidence of the amount actually paid by third parties, such as health insurers, even though the amount actually paid is often a fraction of the billed amount.

Both bills had a public hearing. The Senate Committee on Judiciary and Public Safety recommended SB 405 for passage on a party-line vote of 3-2. Neither bill made it to the floor and are dead for this session.

Opposition to the bills, in addition to the plaintiff’s bar, came from Wisconsin health insurers. Among other concerns, the health insurers’ fundamental problem was the lower award using paid medical expenses as the measure of damages could limit the amounts they could recoup through subrogation for their health care coverage.

For a history of Wisconsin’s collateral source rule, go to Wisconsin Defense Counsel Journal (Spring 2013): Legislation Introduced Will Allow Juries to See Evidence of Collateral Source Payments When Determining Medical Expenses in Personal Injury Cases.

Interest Rates on Judgments Legislation Passes Assembly, Dies in Senate

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Assembly Bill 95, authored by Rep. Jeremy Thiesfeldt (R-Fond du Lac), and Senate Bill 76 , authored by Sen. Stephen Nass (R-Whitewater), sought to change the interest rate for pre- and post- judgment interest for verdicts in small claims court. AB 95 would revise the formula created in 2011 Wisconsin Act 69 back to the pre-Act 69 rate of 12 percent per year.

WCJC opposed the legislation as it would partially repeal a top priority, namely 2011 Wisconsin Act 69. The bill died in the Senate, but we anticipate proponents will next session again push for a change to interest rates on judgments in small claims action.

While introduced in March 2015, the Assembly Committee on Judiciary passed AB 95, 5-4 in January 2016. The Assembly passed the legislation via a voice vote in February with an amendment changing the rate to 8 percent. Though a Senate hearing was held on the bill, no further action occurred in the Senate.

Under current Wisconsin law, plaintiffs who win favorable verdicts are usually entitled to recover interest on the monetary judgments awarded to them. There are two types of interest. There is post-judgment interest, which is meant to compensate the plaintiff for loss of the use of the money while a defendant appeals an unfavorable judgment. Post-judgment interest accrues from the time the judgment is made until the time the judgment is paid. There is also pre-judgment interest, which accrues from the time the plaintiff makes an offer of settlement until the settlement is paid, provided the judgment amount is not less than the settlement amount.

Prior to 2011, pre- and post- judgment interest rates were set at 12 percent. Because appeals or settlement agreements and payment can take time, plaintiffs could receive a significant windfall due to the high interest rate. 2011 Senate Bill 14 signed into law as 2011 Act 69 changed the interest formula from 12 percent to the prime rate set by the Federal Reserve Board plus one percent. This ensures that plaintiffs do not receive a windfall while also ensuring that defendants pay a reasonable interest rate.