102.29(2)
(2) In the case of liability of the employer or insurer to make payment into the state treasury under
s. 102.49 or
102.59, if the injury or death was due to the actionable act, neglect or default of a third party, the employer or insurer shall have a right of action against such third party to recover the sum so paid into the state treasury, which right may be enforced either by joining in the action mentioned in
sub. (1), or by independent action. Contributory negligence of the employe because of whose injury or death such payment was made shall bar recovery if such negligence was greater than the negligence of the person against whom recovery is sought, and the recovery allowed the employer or insurer shall be diminished in proportion to the amount of negligence attributable to such injured or deceased employe. Any action brought under this subsection may, upon order of the court, be consolidated and tried together with any action brought under
sub. (1).
102.29(3)
(3) Nothing in this chapter shall prevent an employe from taking the compensation he or she may be entitled to under it and also maintaining a civil action against any physician, chiropractor, psychologist, dentist or podiatrist for malpractice.
102.29(4)
(4) If the employer and the 3rd party are insured by the same insurer, or by the insurers who are under common control, the employer's insurer shall promptly notify the parties in interest and the department. If the employer has assumed the liability of the 3rd party, it shall give similar notice, in default of which any settlement with an injured employe or beneficiary is void. This subsection does not prevent the employer or compensation insurer from sharing in the proceeds of any 3rd party claim or action, as set forth in
sub. (1).
102.29(5)
(5) An insurer subject to
sub. (4) which fails to comply with the notice provision of that subsection and which fails to commence a 3rd party action, within the 3 years allowed by
s. 893.54, may not plead that
s. 893.54 is a bar in any action commenced by the injured employe under this section against any such 3rd party subsequent to 3 years from the date of injury, but prior to 6 years from such date of injury. Any recovery in such an action is limited to the insured liability of the 3rd party. In any such action commenced by the injured employe subsequent to the 3-year period, the insurer of the employer shall forfeit all right to participate in such action as a complainant and to recover any payments made under this chapter.
102.29(6)
(6) No employe of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary help agency for the employe's services.
102.29(7)
(7) No employe who is loaned by his or her employer to another employer and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who accepted the loaned employe's services.
102.29(8)
(8) No student of a public school, as described in
s. 115.01 (1), or a private school, as defined in
s. 115.001 (3r), who is named under
s. 102.077 as an employe of the school district or private school for purposes of this chapter and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer that provided the work training or work experience from which the claim arose. This subsection does not apply to injuries occurring after December 31, 1999.
102.29(8m)
(8m) No participant in a community service job under
s. 49.147 (4) or a transitional placement under
s. 49.147 (5) who, under
s. 49.147 (4) (c) or
(5) (c), is provided worker's compensation coverage by a Wisconsin works agency, as defined under
s. 49.001 (9), and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the community service job or transitional placement from which the claim arose.
102.29(8r)
(8r) No participant in a food stamp employment and training program under
s. 49.124 (1m) who, under
s. 49.124 (1m) (d), is provided worker's compensation coverage by the department or by a Wisconsin works agency, as defined in
s. 49.001 (9), and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the employment and training from which the claim arose.
102.29(9)
(9) No participant in a work experience component of a job opportunities and basic skills program who, under
s. 49.193 (6) (a), is considered to be an employe of the agency administering that program, or who, under
s. 49.193 (6) (a), is provided worker's compensation coverage by the person administering the work experience component, and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the work experience from which the claim arose. This subsection does not apply to injuries occurring after February 28, 1998.
102.29 Note
NOTE: See cases annotated under 102.03 as to the right to bring a 3rd party action against a coemploye.
102.29 Annotation
When an employe sues a coemploye, who was also president of the employer, he cannot impose on the defendant the increased burden of care of the safe-place statute. Wasley v. Kosmatka, 50 W (2d) 738, 184 NW (2d) 821.
102.29 Annotation
In a 3rd party action under 102.29 liability under 101.11 cannot be imposed on officers or employes of the employer. Their liability must be based on common law negligence. Pitrowski v. Taylor, 55 W (2d) 615, 201 NW (2d) 52.
102.29 Annotation
See note to 102.03, citing Candler v. Hardware Dealers Mut. Ins. Co. 57 W (2d) 85, 203 NW (2d) 659.
102.29 Annotation
Liability of corporate officer and supervisory employe in a 3rd party action discussed. Kruse v. Schieve, 61 W (2d) 421, 213 NW (2d) 65.
102.29 Annotation
Sub. (1) provides attorneys' fees are to be allowed as "costs of collection," and unless otherwise agreed upon, are to be divided between the attorneys for both the employe and the compensation carrier pursuant to court direction. Diedrick v. Hartford Accident & Indemnity Co. 62 W (2d) 759, 216 NW (2d) 193.
102.29 Annotation
The words "action commenced by the injured employe" in (5) also encompass the bringing of wrongful death and survival actions. Ortman v. Jensen & Johnson, Inc. 66 W (2d) 508, 225 NW (2d) 635.
102.29 Annotation
The 6-year limitation of 3rd-party actions for wrongful death provided in 102.29 (5) does not deny 3rd-party defendants the equal protection granted to other wrongful death defendants by the 893.205 (2) 3-year limitation. Ortman v. Jenson & Johnson, Inc. 66 W (2d) 508, 225 NW (2d) 635. (1975).
102.29 Annotation
Extra-hazardous activity exception did not apply where employe of general contractor was injured while doing routine work, notwithstanding that employe was working in nuclear power plant. Snider v. Northern States Power Co. 81 W (2d) 224, 260 NW (2d) 260.
102.29 Annotation
"Business pursuit" exclusion in defendant coemploye's homeowner's policy does not offend public policy. Bertler v. Employers Insurance of Wausau, 86 W (2d) 13, 271 NW (2d) 603 (1978).
102.29 Annotation
See note to 102.03, citing Mulder v. Acme-Cleveland Corp. 95 W (2d) 173, 290 NW (2d) 176 (1980).
102.29 Annotation
Right to partake in proceeds was not dependent on participation in prosecution. Guyette v. West Bend Mut. Ins. Co. 102 W (2d) 496, 307 NW (2d) 311 (Ct. App. 1981).
102.29 Annotation
See note to 102.03, citing Jenkins v. Sabourin, 104 W (2d) 309, 311 NW (2d) 600 (1981).
102.29 Annotation
Indemnity agreements in worker's compensation cases discussed. Hortman v. Otis Erecting Co., Inc. 108 W (2d) 456, 322 NW (2d) 482 (Ct. App. 1982).
102.29 Annotation
Award for loss of consortium is not subject to distribution formula under (1). DeMeulenaere v. Transport Ins. Co. 116 W (2d) 322, 342 NW (2d) 56 (Ct. App. 1983).
102.29 Annotation
Trial court exceeded authority under (1) by applying alternative allocation formula without consent of all parties. Award for pain and suffering is subject to allocation under (1), but award to spouse for loss of consortium prior to employe's death is not. Kottka v. PPG Industries, Inc. 130 W (2d) 499, 388 NW (2d) 160 (1986).
102.29 Annotation
Distribution scheme under (1) renders common-law subrogation principles inapplicable. Martinez v. Ashland Oil, Inc., 132 W (2d) 11, 390 NW (2d) 72 (Ct. App. 1986).
102.29 Annotation
Allocation formula discussed. Brewer v. Auto-Owners Ins. Co., 142 W (2d) 864, 418 NW (2d) 841 (Ct. App. 1987).
102.29 Annotation
Principal employer may not be held vicariously liable to independent contractor's employe for torts of contractor while performing inherently dangerous work. Wagner v. Continental Cas. Co., 143 W (2d) 379, 421 NW (2d) 835 (1988).
102.29 Annotation
Legal distinction between corporation/employer and partnership that leased factory to corporation, both of which entities are composed of same individuals, eliminates partners' immunity under exclusivity doctrine for failing to exercise ordinary care in maintaining leased premises. Couillard v. Van Ess, 152 W (2d) 62, 447 NW (2d) 391 (Ct. App. 1989).
102.29 Annotation
In structured settlement situations, "remainder" under (1) from which employe must receive first one-third is the remainder of the front payment after deduction of collection costs. Skirowski v. Employers Mut. Cas. Co. 158 W (2d) 242, 462 NW (2d) 245 (Ct. App. 1990).
102.29 Annotation
Under (6) temporary employer need only control work activities of temporary employe; it need not have exclusive control over employe's work. Gansch v. Nekoosa Papers, Inc., 158 W (2d) 743, 463 NW (2d) 682 (1990).
102.29 Annotation
Employe's cause of action against third party does not relate back to initial work injury; the cause of action and the employer's rights of subrogation accrue at time of third party negligence. Sutton v. Kaarakka, 159 W (2d) 83, 464 NW (2d) 29 (Ct. App. 1990).
102.29 Annotation
See note to s. 102.03 citing Miller v. Bristol-Myers, 168 W (2d) 863, 485 NW (2d) 31 (1992).
102.29 Annotation
Rights under sub. (1) are not a type of subrogation, but provide a direct cause of action. Campion v. Montgomery Elevator Co. 172 W (2d) 405, 493 NW (2d) 244 (Ct. App. 1992).
102.29 Annotation
Insurer must be paid under sub. (1) in third-party settlement for injury that it concluded was noncompensable but which was consequential to the original injury. Nelson v. Rothering, 174 W (2d) 296, 496 NW (2d) 87 (1993).
102.29 Annotation
Worker's compensation insurer cannot bring third party action against insurer who paid claimant under uninsured motorist coverage; uninsured motorist coverage is contractual and section only allows tort actions. Berna-Mork v. Jones, 174 W (2d) 645, 498 NW (2d) 221 (1993).
102.29 Annotation
Sub. (1) does not require an interested party receiving notice of another's third-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 W (2d) 410, 500 NW (2d) 397 (Ct. App. 1993).
102.29 Annotation
The "dual persona doctrine" which allows an employe to sue an employer in tort when the employer was acting in a persona distinct from its employer persona is available to a temporary employe subject to sub. (6). Melzer v. Cooper Industries, Inc. 177 W (2d) 609, 503 NW (2d) 291 (Ct. App. 1993).
102.29 Annotation
Third-party claims under sub. (1) include wrongful death actions and settlement proceeds are subject to allocation under sub. (1). Stolper v. Owens-Corning Fiberglas Corp. 178 W (2d) 747, 505 NW (2d) 157 (Ct. App. 1993).
102.29 Annotation
Insurer had no right to reimbursement from legal malpractice settlement proceeds arising from a failure to file an action arising from a work related injury as the employe's injury from the malpractice was the loss of a legal right not a physical injury. Smith v. Long, 178 W (2d) 797, 505 NW (2d) 429 (Ct. App. 1993).
102.29 Annotation
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 W (2d) 408, 506 NW (2d) 750 (Ct. App. 1993).
102.29 Annotation
The traditional 4-prong Seaman test for determining whether a person was a "loaned employe" subject to the exclusive remedy provisions of this chapter applies to temporary employes not covered by sub. (6). Bauernfeind v. Zell, 190 W (2d) 701, 528 NW (2d) 1 (1995).
102.29 Annotation
Pecuniary damages recovered in a third-party wrongful death action are subject to distribution under this section. Johnson v. ABC Ins. Co. 193 W. (2d) 35, 532 NW (2d) 130 (1995).
102.29 Annotation
An insurer is entitled to reimbursement under sub. (1) from an employe's settlement with his or her employer where the employer's basis for liability is an indemnification agreement with a 3rd party tortfeasor. Houlihan v. ABC Insurance Co. 198 W (2d) 133, 542 NW (2d) 178 (Ct. App. 1995).
102.29 Annotation
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 W (2d) 347, 541 NW (2d) 824 (Ct. App. 1995).
102.29 Annotation
The Seaman loaned employe test has 3 elements but is often miscast because the Seaman court indicated that there are four "vital questions" which must be answered. The 3 elements are consent by the employe, entry by the employe upon work for the special employer and power of the special employer to to control details of the work. When an employe of one employer assists the employes of another employer as a true volunteer, a loaned employe relationship does not result. Borneman v. Corwyn Transport, Ltd. 212 W (2d) 25, 567 NW (2d) 887 (Ct. App. 1997).
102.29 Annotation
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 or will make to the employe by claiming all the employes' damages including pain and suffering. Threshermens Mutual Insurance Co. v. Page, 217 W (2d) 451, 577 NW (2d) 335 (1998).
102.29 Annotation
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 W (2d) 99, 572 NW (2d) 121 (Ct. App. 1997).
102.29 Annotation
Problems in 3rd party action procedure under the Wisconsin worker's compensation act. Piper. 60 MLR 91.
102.29 Annotation
Impleading a negligent employer is a third-party action when the employer has provided workman's compensation benefits. 1976 WLR 1201.
102.29 Annotation
Product liability in the workplace: The effect of workers' compensation on the rights and liabilities of 3rd parties. Weisgall. 1977 WLR 1035.
102.29 Annotation
Preoccupation with Work Defense to Contributory Negligence. Parlee. Wis. Law. May 1995.
102.29 Annotation
Worker's Compensation Act No Longer Protects Against Employment Discrimination Claims. Skinner. Wis. Law. March 1998.
102.30
102.30
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.
102.30(2)
(2) An employer may provide by mutual or other insurance, by arrangement with employes or otherwise, for the payment to those employes, 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.
102.30(3)
(3) Unless an employe 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 employe 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 employe may not exceed the employe's weekly wage.
102.30(4)
(4) Regardless of any insurance or other contract, an employe 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.
102.30(5)
(5) 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 employe or the person entitled to compensation is subject to the conditions of the policy.
102.30(6)
(6) 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 employe or the injured employe's dependents.
102.30(7)(a)(a) The department 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.
102.30(7)(b)
(b) 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).
102.30 Annotation
Discussion of medical insurer's right to reimbursement under (7). Employers Health Ins. Co. v Tesmer, 161 W (2d) 733, 469 NW (2d) 203 (Ct. App. 1991).
102.31
102.31
Worker's compensation insurance; policy regulations. 102.31(1)(a)(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.
102.31(1)(b)
(b) 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.
102.31(1)(c)1.1. Liability under
s. 102.35 (3) is the sole liability of the employer, notwithstanding any agreement of the parties to the contrary.
102.31(1)(c)2.
2. An intermediate agency or publisher referred to in
s. 102.07 (6) may, under its own contract of insurance, cover liability of employes as defined in
s. 102.07 (6) 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.
102.31(1)(d)
(d) 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.
102.31(1)(dL)
(dL) 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.
102.31(1)(e)
(e) An insurer who provides a contract under
par. (a) shall file the contract as provided in
s. 626.35.
102.31(2)(a)(a) No party to a contract of insurance may cancel it within the contract period or terminate or not renew it 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 either by personal service of the notice upon the department at its office in Madison or by sending the notice by facsimile machine transmission or certified mail addressed to the department at its office in Madison. The department may provide by rule that the notice of cancellation or termination be given by certified mail or facsimile machine transmission to the Wisconsin compensation rating bureau rather than to the department. 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.
102.31(2)(b)1.1. 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.
102.31(2)(b)2.
2. 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 or of an order exempting the employer from carrying insurance under
s. 102.28 (2).
102.31(3)
(3) 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.
102.31(4)
(4) 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.
102.31(5)
(5) If any employer whom the department exempted from carrying compensation insurance arbitrarily or unreasonably refuses employment to or discharges employes because of a nondisabling physical condition, the department shall revoke the exemption of that employer.
102.31(6)
(6) 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).
102.31(7)
(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.
102.31(8)
(8) The Wisconsin compensation rating bureau shall provide the department with any information it requests relating to worker's compensation insurance coverage, including but not limited to 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.
