A politically divided government and the emergence of COVID-19 introduced many new challenges for Wisconsin. WCJC rose to the occasion during the 2019-20 and 2021-22 state legislative sessions, working to safeguard past achievements while notching several new accomplishments.

Most importantly, WCJC ensured that Wisconsin employers and contractors are protected from ordinary negligence claims related to COVID exposure. WCJC also successfully countered several proposals to create new causes of action and began educating legislators about the need to regulate lawsuit lending.

Protecting Employers from COVID Exposure Claims

In February 2021, Gov. Tony Evers (D) signed 2021 Act 4, legislation including both COVID liability protections and reforms to the state’s Unemployment Insurance (UI) system. The bill cleared the Legislature with widespread support, passing the Senate by 27-3 on February 18 and the Assembly by 89-0 on February 23. Senate President Kapenga (R-Delafield), Senate Majority Leader LeMahieu (R-Oostburg), Assembly Speaker Vos (R-Rochester), and Rep. Born (R-Beaver Dam), in particular, championed the liability protections in the Legislature.

The law provides a civil liability exemption from COVID exposure claims for Wisconsin employers, governments, schools, and other entities as well as their employees, agents, volunteers, and contractors. Now, entities cannot be held liable for ordinary negligence claims associated with a COVID infection. This civil immunity does not apply if an act or omission involves reckless or wanton conduct or intentional misconduct. The immunity applies retroactively to claims accruing on or after March 1, 2020, except for actions filed before the bill took effect. The protections do not sunset will continue to apply even as the virus continues to mutate.

Following the enactment of Act 4, president of the American Tort Reform Association Tiger Joyce said in a statement:

“We applaud the leadership of the Wisconsin Civil Justice Council to enact critical reforms in Wisconsin. WCJC’s efforts resulted in the COVID-19 liability protections in Act 4, which are some of the strongest protections I’ve seen enacted in the country.”

Opposing New Civil Causes of Action

Gov. Evers’ 2021 executive budget proposed creating new civil causes of action for employment discrimination, unfair honesty or genetic testing, broadband service denial, and unnecessarily summoning a law enforcement officer. It also would have restored the ability of private parties to bring a qui tam action against a person for making a false claim with the state. WCJC worked with legislators to ensure that these concerning policies were removed early in the budget process.

Protecting Employers Who Hire Ex-Offenders

2019 Act 123 created liability protections for employers who hire individuals who have been convicted of non-violent crimes and have since earned a “certificate of qualification for employment” from the State of Wisconsin. WCJC supported this legislation, which was introduced by Sens. Darling (R-River Hills) and Taylor (D-Milwaukee) and Rep. Hutton (R-Brookfield).

Regulating the Practice of Lawsuit Lending

WCJC supported legislation (2021 AB 858/SB 842) to regulate consumer lawsuit lending in Wisconsin. The bills were introduced by Reps. Tusler (R-Harrison) and McGuire (D-Kenosha) and Sens. Wimberger (R-Green Bay) and Roys (D-Madison).

“Lawsuit lending” refers to the practice of providing money for a consumer to use for any purpose other than prosecuting the consumer’s dispute, with repayment of the money conditioned on and derived from the consumer’s proceeds of the dispute. This is not a means of financing a lawsuit, but rather a form of lending provided to a consumer, such as a plaintiff in a lawsuit, with repayment coming from the plaintiff’s recovery, if any.

Consumer lawsuit lending can result in a plaintiff paying very high effective interest rates, leaving a winning plaintiff with little financial recovery at the end of a successful suit. Typically, a plaintiff who takes out such a loan borrows a few thousand dollars but, when the money is repaid, ends up repaying up to several times the amount borrowed. In addition, the mere presence of such a loan can needlessly prolong litigation, negatively affecting all parties to the litigation, as the plaintiff knows repayment is contingent on a judgment or settlement.

AB 858/SB 842 would have protected consumers and reduced the cost of litigation for all parties by placing reasonable limits on the practice of consumer lawsuit lending, including:

• Capping the interest rate at no more than 18 percent per year.
• Capping the fees that a lender may charge.
• Requiring the transaction to be in writing.
• Allowing the consumer five days to rescind the transaction.
• Prohibiting the lender from making any decisions regarding the legal dispute, leaving any decisions regarding the litigation with the consumer and the consumer’s attorney.

WCJC and the Wisconsin Defense Counsel (WDC) worked to educate legislators on lawsuit lending and provided testimony in support of this legislation to committees in the Senate and Assembly. AB 858 and SB 841 were introduced late in the 2021-22 session and did not pass out of committee in either house before the Legislature adjourned for the remainder of the year.