Chapter 779

779.70(6) (6) When the corporation, described in sub. (1) has so filed its claim for lien upon a lot it may foreclose the same by action in the circuit court having jurisdiction thereof, and ss. 779.09, 779.10, 779.11, 779.12 and 779.13 shall apply to proceedings undertaken for the enforcement and collection of maintenance liens as described in this subsection.

779.70 History History: 1977 c. 316, 449; 1979 c. 32 ss. 57, 92 (9); 1979 c. 176; Stats. 1979 s. 779.70; 1989 a. 31; 1995 a. 224; 1997 a. 254.

subch. VIII of ch. 779 SUBCHAPTER VIII

DISPOSITION OF UNCLAIMED ARTICLES

779.71 779.71 Disposition of articles left for laundering, dry cleaning, repair, storage.

779.71(1) (1) Any garment, clothing, wearing apparel or household goods remaining in the possession of a person, firm, partnership or corporation, on which laundering, cleaning, pressing, glazing or dyeing has been done or upon which alteration or repairs have been made, or on which materials or supplies have been used or furnished, for a period of 6 months or more, may be sold to pay the reasonable or agreed charges and the cost of notifying the owner, after giving notice of said sale as specified in sub. (3) to such owner. Property that is to be placed in storage after any of the services or labors mentioned herein are performed shall not be affected by the provisions of this subsection.

779.71(2) (2) All garments, clothing, wearing apparel or household goods placed in storage, or on which any of the services or labors mentioned in sub. (1) have been performed and then placed in storage by agreement and remaining in the possession of a person without the reasonable or agreed charges having been paid for a period of more than 18 months, may be sold to pay said charges after giving notice of said sale as specified in sub. (3) to such owner, provided that where property was delivered to be cleaned, pressed, glazed or dyed, and left for storage in addition to having such work done, it shall not be so sold unless at the time of delivery the owner was given a receipt for such property containing a statement that the property will be sold when such 18 months have elapsed unless called for within such 18 months’ period. Persons operating as warehouses or warehouse keepers shall not be affected by this subsection.

779.71(3) (3) The mailing of a registered letter, with a return address marked thereon, addressed to the owner at their address given at the time of the delivery of the article or articles to a person, firm, partnership or corporation rendering any of the services or labors as set out in this section, stating the time and place of sale, shall constitute notice. Said notice shall be posted or mailed at least 30 days before the date of sale. The costs of posting or mailing said letter shall be added to the charges.

779.71(4) (4) The person, firm, partnership or corporation to whom the charges are payable, shall, from the proceeds of sale, deduct the charges due plus the costs of notifying the owner and shall hold the overplus, if any, subject to the order of the owner and shall immediately thereafter mail to the owner at the owner’s address, if known, a notice of the sale, the amount of overplus, if any, due the owner, and at any time within 12 months, upon demand by the owner, pay to the owner said sums of overplus.

779.71(5) (5) All persons, firms, partnerships or corporations taking advantage of this section must keep posted in a prominent place in their receiving office or offices at all times 2 notices which shall read as follows: “All articles cleaned, pressed, glazed, laundered, washed, altered or repaired and not called for in 6 months will be sold to pay charges”. “All articles stored by agreement and charges not having been paid for 18 months will be sold to pay charges”.

779.71 History History: 1979 c. 32 s. 57; 1979 c. 176; Stats. 1979 s. 779.71; 1983 a. 500 s. 43.

subch. IX of ch. 779 SUBCHAPTER IX

HOSPITAL LIENS

779.80 779.80 Hospital liens.

779.80(1) (1) Every corporation, association or other organization operating as a charitable institution and maintaining a hospital in this state shall have a lien for services rendered, by way of treatment, care or maintenance, to any person who has sustained personal injuries as a result of the negligence, wrongful act or any tort of any other person.

779.80(2) (2) Such lien shall attach to any and all rights of action, suits, claims, demands and upon any judgment, award or determination, and upon the proceeds of any settlement which such injured person, or legal representatives might have against any such other person for damages on account of such injuries, for the amount of the reasonable and necessary charges of such hospital.

779.80(3) (3) No such lien shall be effective unless a written notice containing the name and address of the injured person, the date and location of the event causing such injuries, the name and location of the hospital, and if ascertainable by reasonable diligence, the names and addresses of the persons alleged to be liable for damages sustained by such injured person, shall be filed in the office of the clerk of circuit court in the county in which such injuries have occurred, or in the county in which such hospital is located, or in the county in which suit for recovery of such damages is pending, prior to the payment of any moneys to such injured person or legal representatives, but in no event later than 60 days after discharge of such injured person from the hospital.

779.80(3)(a) (a) The clerk of circuit court shall enter all hospital liens in the judgment and lien docket, including the name of the injured person, the date of the event causing the injury and the name of the hospital or other institution making the claim. The clerk of circuit court shall receive the fee prescribed in s. 814.61 (5) for entering each lien.

779.80(3)(b) (b) Within 10 days after filing of the notice of lien, the hospital shall send by certified mail or registered mail or serve personally a copy of such notice with the date of filing thereof to or upon the injured person and the person alleged to be liable for damages sustained by such injured person, if ascertained by reasonable diligence. If such hospital fails to give notice if the name and address of the person injured or the person allegedly liable for the injury are known or should be known, the lien shall be void.

779.80(3)(c) (c) The hospital shall also serve a copy of such notice, as provided in par. (b), to any insurer which has insured such person alleged to be liable for the injury against such liability, if the name and address may be ascertained by reasonable diligence.

779.80(4) (4) After filing and service of the notice of lien, no release of any judgment, claim or demand by the injured person shall be valid as against such lien, and the person making any payment to such injured person or legal representatives as compensation for the injuries sustained shall, for a period of one year from the date of such payment, remain liable to the hospital for the amount of such lien.

779.80(5) (5) Such lien shall not in any way prejudice or interfere with any lien or contract which may be made by such injured person or legal representatives with any attorney or attorneys for legal services rendered with respect to the claim of the injured person or legal representatives against the person alleged to be liable for such injury. Said lien shall also be subservient to actual taxable court costs, and actual disbursements made by the attorney in prosecuting the court action.

779.80(6) (6) No hospital is entitled to any lien under this section if the person injured is eligible for compensation under ch. 102 or any other worker’s compensation act.

779.80 History History: 1975 c. 147 s. 54; 1979 c. 32 s. 57; 1979 c. 89; 1979 c. 102 s. 236 (3); 1979 c. 176; Stats. 1979 s. 779.80; 1981 c. 317; 1991 a. 179; 1995 a. 224.

779.80 Annotation Under s. 609.91, a health maintenance organization (HMO) enrollee has no personal liability for the costs of covered health care received. A hospital only has recourse against the HMO and may not assert its lien rights under this section against insurance proceeds paid by a tortfeasor’s insurer to the HMO enrollee. Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999), 98-1772.

779.80 Annotation The circuit court did not err in interpreting federal Medicare law to allow a hospital to enforce a lien under this section after expiration of the time period within which the hospital could have billed Medicare for the plaintiff’s treatment. Laska v. General Casualty Co. of Wisconsin, 2013 WI App 42, 347 Wis. 2d 356, 830 N.W.2d 252, 10-2410.

779.80 Annotation An attorney or law firm that receives and then distributes a settlement payment on a personal injury claim is not, under sub. (4), a person making any payment to the injured person as compensation for the injuries sustained. The tortfeasor’s insurer that made a payment to the injured person through the injured party’s attorney is such a person because it made payment to the injured person as compensation for the injuries sustained. Watertown Regional Medical Center, Inc. v. General Casualty Insurance Co., 2014 WI App 62, 354 Wis. 2d 195, 848 N.W.2d 890, 13-2324.

subch. X of ch. 779 SUBCHAPTER X

PREPAID MAINTENANCE LIEN

779.85 779.85 Definitions. In ss. 779.85 to 779.94:

779.85(1) (1) “Creditor” has the meaning set forth in s. 421.301 (16).

779.85(2) (2) “Customer” means a person who seeks or acquires maintenance on behalf of himself or herself or another person for personal, family, household or agricultural purposes.

779.85(3) (3) “Goods” has the meaning set forth in s. 402.105 (1) (c) except that this term does not include a “motor vehicle” as defined in s. 218.0101 (22).

779.85(4) (4) “Maintenance” means any repair or other services to be performed on goods after the goods have been initially delivered to the premises designated by a customer following its sale, but this term does not include installation, set up charges or delivery charges.

779.85(5) (5) “Prepaid maintenance agreement” means any agreement in which a customer agrees to make prepayment for maintenance to be performed by a seller.

779.85(6) (6) “Prepayment” means any full or partial payment received by a seller or an obligation incurred by a customer to a creditor or to a seller or to a seller’s assignee for maintenance to be performed by a seller if payment is made before the maintenance is rendered or received. This term does not include prepayment for maintenance under an insurance policy. Except with regard to a warranty under s. 101.953, this term does not include prepayment for maintenance to be provided under a manufacturer’s warranty on goods or maintenance unless there is a prepayment made for maintenance to be rendered under the warranty separate from the payment for the goods themselves.

779.85(7) (7) “Regulated prepaid maintenance agreement” means a prepaid maintenance agreement meeting the following requirements:

779.85(7)(a) (a) The total prepayment exceeds $100; and

779.85(7)(b) (b) The total period during which the seller is obligated to provide maintenance exceeds one year whether the obligation is initially for more than one year or is extended or renewed beyond one year.

779.85 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.85; 1983 a. 189 s. 329 (24), (30); 1999 a. 9, 31.

779.86 779.86 Records. A seller shall retain records for 60 days following completion of the time period for which prepaid maintenance is to be performed under a prepaid maintenance agreement including but not limited to records showing the amount of prepayment, the period for which maintenance is to be performed, all contracts relating to such maintenance and all records pertaining to the escrow account or bond required under s. 779.87.

779.86 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.86.

779.87 779.87 Escrow account or bond requirement.

779.87(1) (1) Requirement. A seller who enters a regulated prepaid maintenance agreement shall either maintain an escrow account or maintain a bond.

779.87(2) (2) Escrow account.

779.87(2)(a) (a) Surety. If a seller maintains an escrow account, all proceeds received under any regulated prepaid maintenance agreement shall be deposited in the escrow account for the benefit of any customer who suffers a loss of prepayments for maintenance due to the bankruptcy or cessation of business by the seller.

779.87(2)(b) (b) Not to be commingled. The seller shall not commingle the proceeds received under a regulated prepaid maintenance agreement with any other funds and any other funds which are commingled become a part of and shall be deposited in the escrow account. The seller may aggregate the proceeds received under several prepaid maintenance agreements in one escrow account.

779.87(2)(c) (c) Interest. The seller may withdraw and retain for his or her own use any interest payments received on the escrow account.

779.87(2)(d) (d) Not to be used prior to discharge. The seller may not withdraw or use the proceeds received under a regulated prepaid maintenance agreement which are deposited in an escrow account prior to the discharge of the prepaid maintenance lien under s. 779.91.

779.87(2)(e) (e) Not subject to attachment. Until all prepaid maintenance liens are discharged, the escrow account is not subject to garnishment, execution, levy, attachment or foreclosure except as provided under s. 779.92.

779.87(3) (3) Bond.

779.87(3)(a) (a) Surety. If a seller maintains a bond, it shall be issued by a surety company licensed to do business in this state.

779.87(3)(b) (b) Amount; filed. The principal sum of the bond shall be $25,000 at all times. A copy of the bond shall be filed with the department of financial institutions.

779.87(3)(c) (c) For benefit of customer. The bond shall be in favor of the state for the benefit of any customer who suffers a loss of prepayments for maintenance due to the bankruptcy or cessation of business by the seller. Any customer claiming against the bond may maintain an action against the seller and the surety.

779.87(3)(d) (d) Surety’s obligation. If the seller fails to perform maintenance under a regulated prepaid maintenance agreement, the surety shall either perform or procure the performance of that maintenance or pay the customer the amount of the prepayment made under the agreement.

779.87(3)(e) (e) No lien. If a seller maintains a bond under this subsection, a customer does not have a prepaid maintenance lien under s. 779.88.

779.87 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.87; 1995 a. 27.

779.88 779.88 Prepaid maintenance lien. Except as provided under s. 779.87 (3), a customer who makes a prepayment under a regulated prepaid maintenance agreement has a lien designated as a prepaid maintenance lien in the amount of the prepayment on all the proceeds contained in the escrow account, including all after acquired proceeds. This lien is preferred to all other liens, security interests and claims on such proceeds except other prepaid maintenance liens which attached at an earlier time.

779.88 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.88.

779.89 779.89 Attachment and preservation. All prepaid maintenance liens attach at the time of the first prepayment and shall be preserved from the time the lien attaches. It is not necessary to file or record any notice of the lien in order to preserve or perfect the lien although a customer may file this lien in the manner prescribed for perfecting liens under subch. III of ch. 409 regarding debtors who are located in this state.

779.89 History History: 1977 c. 296; 1979 c. 32 s. 57; Stats. 1979 s. 779.89; 2001 a. 10.

779.90 779.90 Notice of existence of lien. A person is deemed to have notice of a prepaid maintenance lien if:

779.90(1) (1) That person has actual knowledge or reason to know that the lien exists on the seller’s property;

779.90(2) (2) That person has reason to know that the seller regularly demands or accepts prepayments for maintenance;

779.90(3) (3) The seller engages in a type of business that generally requests or demands prepayment for maintenance; or

779.90(4) (4) The lien was filed as permitted in s. 779.89.

779.90 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.90.

779.91 779.91 Discharge of lien.

779.91(1) (1) A prepaid maintenance lien is discharged by:

779.91(1)(a) (a) Returning the amount of the prepayment to the customer who made the prepayment;

779.91(1)(b) (b) The expiration of the time period for the performance of all contract or other obligations secured by the prepayment; or

779.91(1)(c) (c) Lapse of the right to maintain an action.

779.91(2) (2) Upon discharge of a prepaid maintenance lien, any customer who filed the lien as permitted in s. 779.89 is subject to the requirements of s. 409.513.

779.91 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.91; 2001 a. 10.

779.92 779.92 Enforceability of lien. A prepaid maintenance lien is enforceable from the time it attaches until it is discharged. Any enforcement and foreclosure of a prepaid maintenance lien shall be in one civil action and shall be against the proceeds of the escrow account.

779.92 History History: 1977 c. 296; 1979 c. 32 s. 57; Stats. 1979 s. 779.92.

779.93 779.93 Duties of the department of agriculture, trade and consumer protection.

779.93(1) (1) The department of agriculture, trade and consumer protection shall investigate violations of this subchapter and attempts to circumvent this subchapter. The department of agriculture, trade and consumer protection may subpoena persons and records to facilitate its investigations, and may enforce compliance with such subpoenas as provided in s. 885.12.

779.93(2) (2) The department of agriculture, trade and consumer protection may in behalf of the state or in behalf of any person who holds a prepaid maintenance lien:

779.93(2)(a) (a) Bring an action in any court of competent jurisdiction to enforce and foreclose a prepaid maintenance lien under s. 779.92.

779.93(2)(b) (b) Bring an action for temporary or permanent injunctive or other relief in any court of competent jurisdiction for any violation of this chapter or attempt to circumvent this chapter. The court may in its discretion, prior to the entry of final judgment, award restitution to any customer suffering loss because of violations of this subchapter if proof of that loss is submitted to the satisfaction of the court.

779.93(2)(c) (c) Bring an action in any court of competent jurisdiction for recovery of civil forfeitures against any seller who violates this subchapter.

779.93 History History: 1977 c. 296; 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.93; 1995 a. 27.

779.94 779.94 Penalties.

779.94(1) (1) Generally. A person who violates this subchapter shall forfeit not less than $100 nor more than $10,000 for each violation.

779.94(2) (2) Misuse of escrow funds. The use of the proceeds in an escrow account by a seller for any purpose prior to the discharge of the prepaid maintenance lien is theft by the seller and is punishable under s. 943.20. If the seller is a corporation, such misuse is also deemed theft by any officer, director or agent of the corporation responsible for the misappropriation. Any of the misappropriated proceeds which have been received as salary, dividend, loan repayment, capital distribution or otherwise by any shareholder of the corporation not responsible for the misappropriation is a civil liability of the shareholder and may be recovered and restored to the escrow account by action brought by any interested party.

779.94 History History: 1977 c. 296; 1979 c. 32 s. 57; Stats. 1979 s. 779.94.

subch. XI of ch. 779 SUBCHAPTER XI

FEDERAL LIEN REGISTRATION