An insurer must be paid under sub. (1) in a 3rd-party settlement for an injury that it concluded was noncompensable but was consequential to the original injury. Nelson v. Rothering, 174 Wis. 2d 296
, 496 N.W.2d 87
A worker's compensation insurer cannot bring a 3rd-party action against an insurer who paid a claimant under uninsured motorist coverage; uninsured motorist coverage is contractual and this section only applies to tort actions. Berna-Mork v. Jones, 174 Wis. 2d 645
, 498 N.W.2d 221
Sub. (1) does not require an interested party receiving notice of another's 3rd-party claim to give a reciprocal notice to the party making the claim in order to share in the settlement proceeds. Elliot v. Employers Mut. Cas. Co., 176 Wis. 2d 410
, 500 N.W.2d 397
(Ct. App. 1993).
The “dual persona doctrine" that allows an employee to sue an employer in tort when the employer was acting in a persona distinct from its employer persona is available to a temporary employee subject to sub. (6). Melzer v. Cooper Industries, Inc., 177 Wis. 2d 609
, 503 N.W.2d 291
(Ct. App. 1993).
Third-party claims under sub. (1) include wrongful death actions; settlement proceeds are subject to allocation under sub. (1). Stolper v. Owens-Corning Fiberglass Corp., 178 Wis. 2d 747
, 505 N.W.2d 157
(Ct. App. 1993).
An insurer had no right to reimbursement from legal malpractice settlement proceeds arising from a failure to file an action for a work related injury. The employee's injury from the malpractice was the loss of a legal right not a physical injury. Smith v. Long, 178 Wis. 2d 797
, 505 N.W.2d 429
(Ct. App. 1993).
Damages for a child's loss of a parent's society and financial support are not subject to allocation under sub. (1). Cummings v. Klawitter, 179 Wis. 2d 408
, 506 N.W.2d 750
(Ct. App. 1993).
The traditional four-prong Seaman
test for determining whether a person was a “loaned employee" subject to the exclusive remedy provisions of this chapter applies to temporary employees not covered by sub. (6). Bauernfeind v. Zell, 190 Wis. 2d 701
, 528 N.W.2d 1
Pecuniary damages recovered in a 3rd-party wrongful death action are subject to distribution under this section. Johnson v. ABC Insurance Co., 193 Wis. 2d 35
, 532 N.W.2d 130
An insurer is entitled to reimbursement under sub. (1) from an employee's settlement with his or her employer when the employer's basis for liability is an indemnification agreement with a 3rd-party tort-feasor. Houlihan v. ABC Insurance Co., 198 Wis. 2d 133
, 542 N.W.2d 178
(Ct. App. 1995), 95-0662
Sub. (5) extends the statute of limitations only when s. 893.54 is the applicable statute; it does not extend the statute of another state when it is applicable under s. 893.07. That sub. (5) only applies to cases subject to the Wisconsin statute is not unconstitutional. Bell v. Employers Casualty Co., 198 Wis. 2d 347
, 541 N.W.2d 824
(Ct. App. 1995), 95-0301
loaned employee test has three elements but is often miscast because the Seaman
court indicated that there are four “vital questions" that must be answered. The three elements are: 1) consent by the employee; 2) entry by the employee upon work for the special employer; and 3) power in the special employer to control details of the work. When an employee of one employer assists the employees of another employer as a true volunteer, a loaned employee relationship does not result. Borneman v. Corwyn Transport, Ltd., 212 Wis. 2d 25
, 567 N.W.2d 887
(Ct. App. 1997), 96-2511
The allocation of a settlement to various plaintiffs cannot be contested by an insurer who defaults at the hearing to approve the settlement. An insurer does not lose its right to share in the proceeds by defaulting, but it does forfeit its right to object to the application of settlement proceeds to specific claims. Herlache v. Blackhawk Collision Repair, Inc., 215 Wis. 2d 99
, 572 N.W.2d 121
(Ct. App. 1997), 97-0760
In a 3rd-party action filed by an insurer under sub. (1), the insurer has the right to maintain an action for payments it has made or will make to the employee by making a claim for all of the employees' damages, including pain and suffering. Threshermens Mutual Insurance Co. v. Page, 217 Wis. 2d 451
, 577 N.W.2d 335
Under the “dual persona" doctrine, the employer's second role must be so unrelated to its role as an employer that it constitutes a separate legal person. St. Paul Fire & Marine Insurance Co. v. Keltgen, 2003 WI App 53
, 260 Wis. 2d 523
, 659 N.W.2d 906
A “temporary help agency" requires: 1) an employer who places its employee with a 2nd employer; 2) the 2nd employer controls the employee's work activities; and 3) the 2nd employer compensates the first employer for the employee's services. Placement turns not on the physical proximity of the employee to an employer, but upon the purpose of the employee's work. It is a matter of whose work the employee is performing, not where the work is being performed. Control requires some evidence of compulsion or specific direction concerning the employee's daily activities. Peronto v. Case Corp., 2005 WI App 32
, 278 Wis. 2d 800
; 693 N.W.2d 133
Any activities that the attorney takes to bring the claim to court on behalf of his or her client, as enumerated in Zentgraf
, constitute a cost of collection amenable to recovery under sub. (1). Sub. (1) does not require a worker's compensation attorney to demonstrate that his or her activities substantially contributed to obtaining recovery from the third party, or that the activities were taken on behalf of the employee, in order to join in the pressing of a claim. Anderson v. MSI Preferred Insurance Co., 2005 WI 62
, 281 Wis. 2d 66
, 697 N.W.2d 73
The deduction for costs of collection under sub. (1) must be reasonable. The circuit court must consider all of the circumstances to determine whether a contingency fee figure is reasonable and look to the factors in SCR 20:1.5(a)
that help determine the reasonableness of an attorney's fee. For hourly attorney fees the court must follow the lodestar approach under which the circuit court must first multiply the reasonable hours expended by a reasonable rate then make adjustments using the SCR 20:1.5(a)
factors. The sum of all the attorneys' reasonable fees and costs may, but need not, equal a reasonable cost of collection. The court must evaluate the total cost of collection and determine whether that sum is reasonable, in light of, among other things, the recovery. Anderson v. MSI Preferred Insurance Co., 2005 WI 62
, 281 Wis. 2d 66
, 697 N.W.2d 73
The pro rata distribution formula under Brewer, 142 Wis. 2d 864
, applies whenever the insurance proceeds are insufficient to satisfy all claims regardless of the reason for that insufficiency, including a settlement by the parties. Allocating a disproportionate amount of the total settlement to claims that are exempt from sub. (1) circumvents legislative intent. The Brewer
formula prevents the parties from using settlement as an end-run around the purposes of the worker's compensation scheme. Green v. Advance Finishing Technology, Inc., 2005 WI App 70
, 280 Wis. 2d 743
, 695 N.W.2d 856
Sub. (1) transforms a worker's compensation insurer's right of subrogation into a right to bring direct claims against 3rd-party tortfeasors. The insurer is entitled to prosecute the action along with the employee by virtue of sub. (1). Sub. (1) gives the trial court the right to settle a dispute between the two plaintiffs, as to whether or not a compromise settlement offered by the defendant should be accepted and does not differentiate between the employee and the worker's compensation insurer. Dalka v. American Family Mutual Insurance Co., 2011 WI App 90
, 334 Wis. 2d 686
, 799 N.W.2d 923
This section preserves an existing common law right. It does not create a new right to tort claims against a third party and it does not permit a party to bypass a statute of repose. Crisanto v. Heritage Relocation Services, Inc., 2014 WI App 75
, 355 Wis. 2d 403
, 851 N.W.2d 771
A circuit court may compel an employee to accept settlement of a claim against a 3rd party under sub. (1). This result does not violate the employee's right to a jury trial because the claim sub. (1) creates is not the counterpart of a cause of action at law recognized at the time of the adoption of the Wisconsin Constitution. The circuit court's authority to compel an employee to accept settlement does not violate procedural due process because judicial resolution of disputes is part of the statutory claim. Adams v. Northland Equipment Company, Inc., 2014 WI 79
, 356 Wis. 2d 529
, 850 N.W.2d 272
Former sub. (6) (b) 1., 2015 stats., expressly prohibited an employee of a temporary help agency “who makes a claim for compensation" from maintaining an action in tort against any employer that compensated the temporary help agency for the employee's services. The necessary implication of that language is that a temporary employee who did not make a claim for compensation under the worker's compensation act was not prohibited from bringing a tort claim against the compensating employer. Ehr v. West Bend Mutual Insurance Co., 2018 WI App 14
, 380 Wis. 2d 138
, 908 N.W.2d 486
, 2005 WI 62
, the first step in determining the reasonable costs of collection under sub. (1) is to establish the reasonable value of each attorney's services. In doing so, a court is typically guided by the respective attorneys' fee agreements. In this case, however, the record did not contain a written fee agreement or describe the unwritten fee agreement terms with a high degree of clarity or specificity. Under those circumstances, a circuit court may determine the reasonable value of an attorney's services using a quantum meruit theory—that is, by multiplying the number of hours worked on the case by a reasonable hourly rate. However, a circuit court is not required to employ a quantum meruit approach. Vande Corput v. Pekin Insurance Co., 2018 WI App 56
, 384 Wis. 2d 252
, 918 N.W.2d 117
In this case, the existence of an unfulfilled contingency did not prevent the circuit court from approving a settlement agreement. Sub. (1) (c) expressly states that the costs of collection shall be divided as directed by a court “unless otherwise agreed upon” by the parties. In this case, the parties did not reach any agreement regarding the division of the costs of collection. On those facts, sub. (1) (c) gave the court clear authority to divide the costs of collection. Vande Corput v. Pekin Insurance Co., 2018 WI App 56
, 384 Wis. 2d 252
, 918 N.W.2d 117
In this case, the circuit court did not erroneously exercise its discretion by refusing to distribute any portion of the reasonable cost of collection to the worker's compensation insurer's attorneys under sub. (1) (b) 1. and (c). The circuit court determined that the insurer's attorneys' contingency fee agreement was unreasonable, concluded that the court could not calculate the reasonable value of the attorneys' fees using either a lodestar or a quantum meruit analysis because the attorneys had failed to provide the necessary evidence, and, accordingly, concluded that the reasonable amount of the attorneys' fees was $0. Sinkler v. American Family Mutual Insurance Co., 2019 WI App 64
, 389 Wis. 2d 273
, 936 N.W.2d 186
Problems in 3rd-party action procedure under the Wisconsin worker's compensation act. Piper. 60 MLR 91.
Impleading a negligent employer in a third-party action when the employer has provided workman's compensation benefits. 1976 WLR 1201.
Product liability in the workplace: The effect of workers' compensation on the rights and liabilities of 3rd parties. Weisgall. 1977 WLR 1035.
Worker's Compensation: Preoccupation with Work Defense to Contributory Negligence. Parlee. Wis. Law. May 1995.
Worker's Compensation Act No Longer Protects Against Employment Discrimination Claims. Skinner. Wis. Law. Mar. 1998.
“Equal Voice" Confirmed: Worker's Comp Carriers Can Compel Settlement. Weiss. Wis. Law. May 2012.
Other insurance not affected; liability of insured employer. 102.30(1)(1)
This chapter does not affect the organization of any mutual or other insurance company or the right of the employer to insure in mutual or other companies against such liability or against the liability for the compensation provided for by this chapter.
An employer may provide by mutual or other insurance, by arrangement with employees or otherwise, for the payment to those employees, their families, their dependents or their representatives, of sick, accident or death benefits in addition to the compensation provided under this chapter. Liability for compensation is not affected by any insurance, contribution or other benefit due to or received by the person entitled to that compensation.
Unless an employee elects to receive sick leave benefits in lieu of compensation under this chapter, if sick leave benefits are paid during the period that temporary disability benefits are payable, the employer shall restore sick leave benefits to the employee in an amount equal in value to the amount payable under this chapter. The combination of temporary disability benefits and sick leave benefits paid to the employee may not exceed the employee's weekly wage.
Regardless of any insurance or other contract, an employee or dependent entitled to compensation under this chapter may recover compensation directly from the employer and may enforce in the person's own name, in the manner provided in this chapter, the liability of any insurance company which insured the liability for that compensation. The appearance, whether general or special, of any such insurance carrier by agent or attorney constitutes waiver of the service of copy of application and of notice of hearing required by s. 102.17
Payment of compensation under this chapter by either the employer or the insurance company shall, to the extent thereof, bar recovery against the other of the amount so paid. As between the employer and the insurance company, payment by either the employer or the insurance company directly to the employee or the person entitled to compensation is subject to the conditions of the policy.
The failure of the assured to do or refrain from doing any act required by the policy is not available to the insurance carrier as a defense against the claim of the injured employee or the injured employee's dependents.
The department or the division may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42
when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.
An insurer who issues a nonindustrial insurance policy described in par. (a)
may not intervene as a party in any proceeding under this chapter for reimbursement under par. (a)
The prohibition of intervention by nonindustrial insurers under sub. (7) (b) is constitutional. An insurer is not denied a remedy for amounts wrongfully paid to its insured. It may bring a direct action the insured. Employers Health Insurance Co. v Tesmer, 161 Wis. 2d 733
, 469 N.W.2d 203
(Ct. App. 1991).
Although sub. (7) (a), read in isolation, authorizes the reimbursement of a subrogated insurer, when an insurer becomes subrogated by paying medical expenses arising from injuries that are compensable under this chapter, and the employer's worker's compensation insurance carrier is in liquidation, s. 646.31 (11) precludes the commission from ordering the employer to reimburse the subrogated insurer for those expenses. Wisconsin Insurance Security Fund v. Labor and Industry Review Commission, 2005 WI App 242
, 288 Wis. 2d 206
, 707 N.W.2d 293
Worker's compensation insurance; policy regulations. 102.31(1)(a)
Every contract for the insurance of compensation provided under this chapter or against liability therefor is subject to this chapter and provisions inconsistent with this chapter are void.
Except as provided in par. (c)
, a contract under par. (a)
shall be construed to grant full coverage of all liability of the assured under this chapter unless the department specifically consents by written order to the issuance of a contract providing divided insurance or partial insurance.
Liability under s. 102.35 (3)
is the sole liability of the employer, notwithstanding any agreement of the parties to the contrary.
An intermediate agency or publisher of a newspaper or magazine may, under its own contract of insurance, cover liability of persons selling or distributing the newspaper or magazine on the street or from house to house for an intermediate or independent news agency, if the contract of insurance of the publisher or intermediate agency is endorsed to cover those persons. If the publisher so covers, the intermediate or independent news agency need not cover liability for those persons.
A contract procured to insure a partnership may not be construed to cover the individual liability of the members of the partnership in the course of a trade, business, profession or occupation conducted by them as individuals. A contract procured to insure an individual may not be construed to cover the liability of a partnership of which the individual is a member or to cover the liability of the individual arising as a member of any partnership.
A contract procured to insure a limited liability company may not be construed to cover the individual liability of the members of the limited liability company in the course of a trade, business, profession or occupation conducted by them as individuals. A contract procured to insure an individual may not be construed to cover the liability of a limited liability company of which the individual is a member or to cover the liability of the individual arising as a member of any limited liability company.
An insurer who provides a contract under par. (a)
shall file the contract as provided in s. 626.35
No party to a contract of insurance may cancel the contract within the contract period or terminate or not renew the contract upon the expiration date until a notice in writing is given to the other party fixing the proposed date of cancellation or declaring that the party intends to terminate or does not intend to renew the policy upon expiration. Except as provided in par. (b)
, when an insurance company does not renew a policy upon expiration, the nonrenewal is not effective until 60 days after the insurance company has given written notice of the nonrenewal to the insured employer and the department. Cancellation or termination of a policy by an insurance company for any reason other than nonrenewal is not effective until 30 days after the insurance company has given written notice of the cancellation or termination to the insured employer and the department. Notice to the department may be given by personal service of the notice upon the department at its office in Madison or by sending the notice to the department in a medium approved by the department. The department may provide by rule that the notice of cancellation or termination be given to the Wisconsin compensation rating bureau rather than to the department in a medium approved by the department after consultation with the Wisconsin compensation rating bureau. Whenever the Wisconsin compensation rating bureau receives such a notice of cancellation or termination it shall immediately notify the department of the notice of cancellation or termination.
In the event of a court-ordered liquidation of an insurance company, a contract of insurance issued by that company terminates on the date specified in the court order.
Regardless of whether the notices required under par. (a)
have been given, a cancellation or termination is effective upon the effective date of replacement insurance coverage obtained by the employer, the effective date of an order under s. 102.28 (2) (b)
exempting the employer from the duty to carry insurance under s. 102.28 (2) (a)
, or the effective date of an election by an employer under s. 102.28 (2) (bm)
to self-insure its liability for the payment of compensation under this chapter.
The department may examine from time to time the books and records of any insurer insuring liability or compensation for an employer in this state. The department may require an insurer to designate one mailing address for use by the department and to respond to correspondence from the department within 30 days. Any insurer that refuses or fails to answer correspondence from the department or to allow the department to examine its books and records is subject to enforcement proceedings under s. 601.64
If any insurer authorized to transact worker's compensation insurance in this state fails to promptly pay claims for compensation for which it is liable or fails to make reports to the department required by s. 102.38
, the department may recommend to the commissioner of insurance, with detailed reasons, that enforcement proceedings under s. 601.64
be invoked. The commissioner shall furnish a copy of the recommendation to the insurer and shall set a date for a hearing, at which both the insurer and the department shall be afforded an opportunity to present evidence. If after the hearing the commissioner finds that the insurer has failed to carry out its obligations under this chapter, the commissioner shall institute enforcement proceedings under s. 601.64
. If the commissioner does not so find, the commissioner shall dismiss the complaint.
If any employer whom the department exempted from carrying compensation insurance arbitrarily or unreasonably refuses employment to or discharges employees because of a nondisabling physical condition, the department shall revoke the exemption of that employer.
The department has standing to appear as a complainant and present evidence in any administrative hearing or court proceeding instituted for alleged violation of s. 628.34 (7)
If the department by one or more written orders specifically consents to the issuance of one or more contracts covering only the liability incurred on a construction project and if the construction project owner designates the insurance carrier and pays for each such contract, the construction project owner shall reimburse the department for all costs incurred by the department in issuing the written orders and in ensuring minimum confusion and maximum safety on the construction project. All moneys received under this subsection shall be deposited in the worker's compensation operations fund and credited to the appropriation account under s. 20.445 (1) (rb)
The Wisconsin compensation rating bureau shall provide the department with any information that the department may request relating to worker's compensation insurance coverage, including the names of employers insured and any insured employer's address, business status, type and date of coverage, manual premium code, and policy information including numbers, cancellations, terminations, endorsements, and reinstatement dates. The department may enter into contracts with the Wisconsin compensation rating bureau to share the costs of data processing and other services. No information obtained by the department under this subsection may be made public by the department except as authorized by the Wisconsin compensation rating bureau.
See also ss. DWD 80.61
, Wis. adm. code.
Sub. (1) (b) [now (1) (d)] does not apply to a joint venture, and insurance written in the name of one venturer is sufficient to cover his or her joint liability. Insurance Company of North America v. DILHR, 45 Wis. 2d 361
, 173 N.W.2d 192
Worker's compensation insurance; employee leasing companies. 102.315(1)(b)
“Client" means a person that obtains all or part of its nontemporary, ongoing employee workforce through an employee leasing agreement with an employee leasing company.
“Divided workforce" means a workforce in which some of the employees of a client are leased employees and some of the employees of the client are not leased employees, but does not include a workforce with respect to a client that has elected to provide insurance coverage for leased employees under sub. (2m)
“Divided workforce plan" means a plan under which 2 worker's compensation insurance policies are issued to cover the employees of a client that has a divided workforce, one policy covering the leased employees of the client and one policy covering the employees of the client who are not leased employees.
“Employee leasing agreement" means a written contract between an employee leasing company and a client under which the employee leasing company provides all or part of the nontemporary, ongoing employee workforce of the client.
“Employee leasing company" means a person that contracts to provide the nontemporary, ongoing employee workforce of a client under a written agreement, regardless of whether the person uses the term “professional employer organization," “PEO," “staff leasing company," “registered staff leasing company," or “employee leasing company," or uses any other, similar name, as part of the person's business name or to describe the person's business. “Employee leasing company" does not include a cooperative educational service agency. This definition applies only for the purposes of this chapter and does not apply to the use of the term in any other chapter.
“Leased employee" means a nontemporary, ongoing employee whose services are obtained by a client under an employee leasing agreement.
“Master policy" means a single worker's compensation insurance policy issued by an insurer authorized to do business in this state to an employee leasing company in the name of the employee leasing company that covers more than one client of the employee leasing company.
“Multiple coordinated policy" means a contract of insurance for worker's compensation under which an insurer authorized to do business in this state issues separate worker's compensation insurance policies to an employee leasing company for each client of the employee leasing company that is insured under the contract.
“Small client" means a client that has an unmodified annual premium assignable to its business, including the business of all entities or organizations that are under common control or ownership with the client, that is equal to or less than the threshold below which employers are not experience rated under the standards and criteria under ss. 626.11
, without regard to whether the client has a divided workforce.
Employee leasing company liable.
Except as otherwise provided in an employee leasing agreement that meets the requirements of sub. (2m)
, an employee leasing company is liable under s. 102.03
for all compensation payable under this chapter to a leased employee, including any payments required under s. 102.16 (3)
, 102.18 (1) (b) 3.
, 102.22 (1)
, 102.35 (3)
, or 102.60
. If a client that makes an election under sub. (2m) (a)
terminates the election, fails to provide the required coverage, or allows coverage to lapse, the employee leasing company is liable under s. 102.03
as set forth in this subsection. Except as allowed under s. 102.29
, an employee leasing company may not seek or receive reimbursement from another employer for any payments made as a result of that liability. An employee leasing company is not liable under s. 102.03
for any compensation payable under this chapter to an employee of a client who is not a leased employee.
Termination of employee leasing agreement.
If an employee leasing company terminates an employee leasing agreement with a client that has made an election under sub. (2m) (a)
, the company shall provide notice of the termination of an employee leasing agreement to the department and the client, on a form prescribed by the department, at least 30 days before the termination of the employee leasing agreement. The notice provided under this subsection must contain all of the following information:
The name, mailing address, and federal employer identification number of the employee leasing company.
The name, mailing address, and federal employer identification number of the client.
The effective date of the termination of the employee leasing agreement.
The signatures of the authorized representatives of the client and the employee leasing company.
Client election to provide insurance coverage.