Chapter 803

803.04 Annotation That a policy is one of indemnity rather than liability does not prevent direct action against the insurer. Decade’s Monthly Income & Appreciation Fund v. Whyte & Hirschboeck, S.C., 173 Wis. 2d 665, 495 N.W.2d 335 (1993).

803.04 Annotation Joinder of one tortfeasor who causes an injury and a successive tortfeasor who aggravates the injury is permitted by this section. Kluth v. General Casualty Co. of Wisconsin, 178 Wis. 2d 808, 505 N.W.2d 442 (Ct. App. 1993).

803.04 Annotation There is neither a statutory nor a constitutional right to have all parties identified to a jury, but, as a procedural rule, the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc., 200 Wis. 2d 512, 546 N.W.2d 870 (1996), 93-3182.

803.04 Annotation If the issue of insurance coverage involves a party not a party to the underlying lawsuit, coverage may be determined by either a bifurcated trial or a separate declaratory judgment action. The plaintiff and any other party asserting a claim in the underlying suit must be named, and consolidation with the underlying action may be required. Fire Insurance Exchange v. Basten, 202 Wis. 2d 74, 549 N.W.2d 690 (1996), 94-3377.

803.04 Annotation The federal compulsory counterclaim rule precluded an action against an insurer under the state direct action statute when an action directly against the insured was barred by rule. Fagnan v. Great Central Insurance Co., 577 F.2d 418 (1978).

803.04 Annotation In order to join an insurer under sub. (2) (a), the accident must have occurred in this state or the policy must have been issued or delivered in the state. Utz v. Nationwide Mutual Insurance Co., 619 F.2d 7 (1980).

803.04 Annotation Sub. (2) (a) is limited to negligence claims, which do not include implied warranty claims. Rich Products Corp. v. Zurich American Insurance Co., 293 F.3d 981 (2002).

803.04 Annotation A breach of fiduciary duty was negligence for purposes of Wisconsin’s direct action and direct liability statutes. Federal Deposit Insurance Corp. v. MGIC Indemnity Corp., 462 F. Supp. 759 (1978).

803.045 803.045 Actions to satisfy spousal obligations.

803.045(1) (1) Except as provided in sub. (2), when a creditor commences an action on an obligation described in s. 766.55 (2), the creditor may proceed against the obligated spouse, the incurring spouse or both spouses.

803.045(2) (2) In an action on an obligation described in s. 766.55 (2) (a) or (b), a creditor may proceed against the spouse who is not the obligated spouse or the incurring spouse if the creditor cannot obtain jurisdiction in the action over the obligated spouse or the incurring spouse.

803.045(3) (3) After obtaining a judgment, a creditor may proceed against either or both spouses to reach marital property available for satisfaction of the judgment.

803.045(4) (4) This section does not affect the property available under s. 766.55 (2) to satisfy the obligation.

803.045 History History: 1985 a. 37.

803.05 803.05 Third-party practice.

803.05(1) (1) At any time after commencement of the action, a defending party, as a 3rd-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the defending party for all or part of the plaintiff’s claim against the defending party, or who is a necessary party under s. 803.03. The 3rd-party plaintiff need not obtain leave to implead if he or she serves the 3rd-party summons and 3rd-party complaint not later than 6 months after the summons and complaint are filed or the time set in a scheduling order under s. 802.10; thereafter, the 3rd-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and 3rd-party complaint, hereinafter called the 3rd-party defendant, shall make defenses to the 3rd-party plaintiff’s claim as provided in s. 802.06 and counterclaims against the 3rd-party plaintiff and cross claims against any other defendant as provided in s. 802.07. The 3rd-party defendant may assert against the plaintiff any defenses which the 3rd-party plaintiff has to the plaintiff’s claim. The 3rd-party defendant may also assert any claim against the plaintiff if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff’s claim against the 3rd-party plaintiff. The plaintiff may assert any claim against the 3rd-party defendant if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff’s claim against the 3rd-party plaintiff, and the 3rd-party defendant thereupon shall assert defenses as provided in s. 802.06 and counterclaims and cross claims as provided in s. 802.07.

803.05(2) (2) When a counterclaim is asserted against a plaintiff, the plaintiff may cause a 3rd party to be brought in under circumstances which under this section would entitle a defendant to do so.

803.05(3) (3) Oral argument permitted on motions under this section may be heard by telephone under s. 807.13 (1).

803.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 648 (1975); 1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2005 a. 253; 2007 a. 97.

803.05 Note Judicial Council Committee’s Note, 1977: Sub. (1) has been amended to allow a third-party plaintiff to serve the third-party summons and third-party complaint without leave of the court to implead if the third-party summons and third-party complaint are filed not later than 6 months after the summons and complaint in the original action are filed. The new six-month time period has been created since the old time period allowing a third-party plaintiff to file a third-party summons and third-party complaint without the need to obtain leave to implead during the time set in a scheduling order under s. 802.10 can no longer apply in most cases. The use of such a scheduling order is now completely discretionary with the trial judge. [Re Order effective July 1, 1978]

803.05 Note Judicial Council Note, 1988: Sub. (3) [created] allows oral argument permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

803.05 Annotation The statute of limitations is applicable to a claim made under sub. (1). Strassman v. Muranyi, 225 Wis. 2d 784, 594 N.W.2d 398 (Ct. App. 1999), 98-3039.

803.06 803.06 Misjoinder and nonjoinder of parties.

803.06(1) (1) Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Oral argument permitted on motions under this subsection may be heard by telephone under s. 807.13 (1).

803.06(2) (2) When it comes to the attention of the court that the summons has not been served upon a named defendant, the court may enter an order on its own initiative, after notice to parties of record, dismissing the action as to that defendant without prejudice.

803.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 141 Wis. 2d xiii (1987).

803.06 Note Judicial Council Committee’s Note, 1976: Sub. (2) establishes an efficient procedure for dismissing an action against a defendant who has not been served. It will help alleviate situations such as clouds on title that could result from a summons that was not served being on file with the clerk of court. [Re Order effective Jan. 1, 1977]

803.06 Note Judicial Council Note, 1988: Sub. (1) is amended to permit oral argument on motions to drop or add parties to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

803.07 803.07 Interpleader. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in s. 803.04.

803.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); 1975 c. 218; 2007 a. 97.

803.07 Annotation Under this section, a defendant who is exposed to double or multiple liability may obtain interpleader by way of cross claim or counterclaim against a party already in the lawsuit. Nelson v. Loessin, 2020 WI App 72, 394 Wis. 2d 784, 951 N.W.2d 605, 18-2448.

803.07 Annotation As I See It: Improving Interpleader: Discharge Stakeholders from Litigation. Finerty. Wis. Law. June 2020.

803.08 803.08 Class actions.

803.08(1) (1) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if the court finds all of the following:

803.08(1)(a) (a) The class is so numerous that joinder of all members is impracticable.

803.08(1)(b) (b) There are questions of law or fact common to the class.

803.08(1)(c) (c) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

803.08(1)(d) (d) The representative parties will fairly and adequately protect the interests of the class.

803.08(2) (2) Types of class actions. A class action may be maintained if sub. (1) is satisfied and if the court finds that any of the following are satisfied:

803.08(2)(a) (a) Prosecuting separate actions by or against individual class members would create a risk of either of the following:

803.08(2)(a)1. 1. Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.

803.08(2)(a)2. 2. Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.

803.08(2)(b) (b) The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

803.08(2)(c) (c) The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include all of the following:

803.08(2)(c)1. 1. The class members’ interests in individually controlling the prosecution or defense of separate actions.

803.08(2)(c)2. 2. The extent and nature of any litigation concerning the controversy already begun by or against class members.

803.08(2)(c)3. 3. The desirability or undesirability of concentrating the litigation of the claims in the particular forum.

803.08(2)(c)4. 4. The likely difficulties in managing a class action.

803.08(3) (3) Certification order.

803.08(3)(a) (a) Time to issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

803.08(3)(b) (b) Defining the class; appointing class counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under sub. (12).

803.08(3)(c) (c) Altering or amending the order. An order that grants or denies class certification may be altered or amended before final judgment.

803.08(4) (4) Notice.

803.08(4)(a) (a) For sub. (2) (a) or (b) classes. For any class certified under sub. (2) (a) or (b), the court may direct appropriate notice to the class.

803.08(4)(b) (b) For sub. (2) (c) classes. For any class certified under sub. (2) (c), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language, all of the following:

803.08(4)(b)1. 1. The nature of the action.

803.08(4)(b)2. 2. The definition of the class certified.

803.08(4)(b)3. 3. The class claims, issues, or defenses.

803.08(4)(b)4. 4. That a class member may enter an appearance through an attorney if the member so desires.

803.08(4)(b)5. 5. That the court will exclude from the class any member who requests exclusion.

803.08(4)(b)6. 6. The time and manner for requesting exclusion.

803.08(4)(b)7. 7. The binding effect of a class judgment on members under sub. (5).

803.08(5) (5) Judgment. Whether or not favorable to the class, the judgment in a class action must do one of the following:

803.08(5)(a) (a) For any class certified under sub. (2) (a) or (b), include and describe those whom the court finds to be class members.

803.08(5)(b) (b) For any class certified under sub. (2) (c), include and specify or describe those to whom the notice under sub. (4) was directed, who have not requested exclusion, and whom the court finds to be class members.

803.08(6) (6) Particular issues. Notwithstanding ss. 805.05 (2) and 805.09 (2), when appropriate, an action may be brought or maintained as a class action with respect to particular issues.

803.08(7) (7) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.

803.08(8) (8) Conducting the action.

803.08(8)(a) (a) In general. In conducting an action under this section, the court may issue orders that do any of the following:

803.08(8)(a)1. 1. Determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument.

803.08(8)(a)2. 2. Require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class members of any of the following:

803.08(8)(a)2.a. a. Any step in the action.

803.08(8)(a)2.b. b. The proposed extent of the judgment.

803.08(8)(a)2.c. c. The members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action.

803.08(8)(a)3. 3. Impose conditions on the representative parties or on intervenors.

803.08(8)(a)4. 4. Require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.

803.08(8)(a)5. 5. Deal with similar procedural matters.

803.08(8)(b) (b) Combining and amending orders. An order under sub. (8) (a) may be altered or amended from time to time and may be combined with an order under s. 802.10.

803.08(9) (9) Settlement, voluntary dismissal, or compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. All of the following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

803.08(9)(a) (a) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.

803.08(9)(b) (b) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.

803.08(9)(c) (c) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.

803.08(9)(d) (d) If the class action was previously certified under sub. (2) (c), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

803.08(9)(e) (e) Any class member may object to the proposal if it requires court approval under sub. (9); the objection may be withdrawn only with the court’s approval.

803.08(10) (10) Disposition of residual funds.

803.08(10)(a) (a) In this subsection:

803.08(10)(a)1. 1. “Residual funds” means funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorney fees, and other court-approved disbursements in an action under this section.

803.08(10)(a)2. 2. “WisTAF” means the Wisconsin Trust Account Foundation, Inc.

803.08(10)(b) (b)