2017 - 2018 LEGISLATURE
March 2, 2018 - Printed by direction of Senate Chief Clerk.
1An Act to renumber
802.06 (1), 804.01 (2) (e) 1., 893.93 (1) (a) and 893.93 (1) (b); 2to renumber and amend
804.09 (2) (a); to amend
218.0125 (7), 218.0126, 3
628.46 (1), 801.01 (2), 804.01 (1), 804.01 (2) (a), 804.01 (2) (e) 2., 804.01 (2) (e) 4
3., 804.01 (3) (a) 2., 804.01 (4), 804.09 (2) (b) 1., 804.12 (1) (a), 893.53, 893.89 (1) 5
and 893.89 (3) (b); to repeal and recreate
803.08 (11); and to create
(6) and (7), 802.06 (1) (b), 804.01 (2) (am), 804.01 (2) (bg), 804.01 (2) (e) 1g., 7
804.01 (8), 804.045, 804.08 (1) (am), 804.09 (2) (a) 3., 893.93 (1) (cm) and 893.93 8
(1m) (intro.) of the statutes; relating to: discovery of information in court
9proceedings; procedural requirements relating to class actions; the statute of
10limitations for certain civil actions; agreements by the secretary of revenue to
1allow third-party audits and estimates based on statistical sampling related
2to unclaimed property; and interest rates for overdue insurance claims.
Analysis by the Legislative Reference Bureau
The text of Engrossed 2017 Assembly Bill 773 consists of the following
document adopted in the assembly on February 22, 2018: the bill as affected by
Assembly Substitute Amendment 2.
Content of Engrossed 2017 Assembly Bill 773:
This bill makes certain changes to discovery procedure in court proceedings.
Under the bill, the court must limit the frequency or extent of discovery if it
determines that the discovery sought is cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less expensive
or that the burden or expense of the proposed discovery outweighs its likely benefit
or is not proportional to the claims and defenses at issue. In addition, the bill limits
discovery of electronic information such that, in the absence of the moving party
showing substantial need and good cause, a party is not required to keep or provide
the following types of electronic information: data that cannot be retrieved without
substantial additional programming or without transforming it into another form
before search and retrieval can be achieved; backup data that are substantially
duplicative of data that are more accessible elsewhere; legacy data remaining from
obsolete systems that are unintelligible on successor systems; and any other data
that are not available to the producing party in the ordinary course of business and
that the party identifies as not reasonably accessible because of undue burden or
The bill also creates a mandatory disclosure requirement that requires a party,
without awaiting a discovery request, to disclose any agreement under which any
person, other than an attorney who is permitted to charge a contingent fee for
representing a party, has a right to receive compensation that is contingent on and
sourced from any proceeds of the civil action.
In December 2017, the supreme court issued an order that creates detailed
procedures relating to class actions where previously Wisconsin had few procedural
requirements relating to class actions. The procedures implemented in the order
closely track the federal procedures for filing and maintaining a class action. This
bill amends certain aspects of appellate procedure for a class action.
statute of limitations
Under current law, the statute of limitations for an action for injury to character
is six years. Under the bill, the statute of limitations is shortened to three years.
Under current law, the statute of limitations for an action for injury resulting
from improvements to real property is ten years. Under the bill, the statute of
limitations is shortened to seven years.
Under current law, the statute of limitations for an action upon a liability
created by statute when a different limitation is not prescribed by law and for an
action for relief on the ground of fraud is six years. Under the bill, the statute of
limitations is shortened to three years.
third-party tax audits
This bill prohibits the secretary of revenue from entering into an agreement to
allow a person to engage in an audit on a contingent fee basis of another person's
documents or records in order to administer the unclaimed property law or to
purchase information arising from the audit, except for information received from
the federal government. However, if the person whose documents or records are
audited is not domiciled in this state, the secretary may enter into such a contingent
fee agreement if the amount of the contingent fee does not exceed 12 percent of the
total amount of unclaimed property that is disclosed by the audit.
The bill also prohibits the secretary from entering into an agreement as part
of an effort to administer the unclaimed property law that allows a person engaging
in an audit of another person's documents or records to use statistical sampling to
estimate the liability of that person unless that person consents to the use of an
Timely payment of claims
This bill changes the interest rate that an insurer must pay for overdue
insurance claims from 12 percent to 7.5 percent. Current law requires an insurer to
promptly pay every insurance claim and, generally, a claim is considered overdue if
the claim is not paid within 30 days after the insurer has written notice of the fact
and amount of a covered loss.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
177.30 (6) and (7) of the statutes are created to read:
(a) Except as provided in pars. (b) and (c), the administrator may not 3
enter into a contract or other agreement to allow any person to engage in an audit 4
on a contingent fee basis of another person's documents or records as part of an effort 5
to administer this chapter or to purchase information or documents arising from the 6
(b) If a person whose documents or records are audited is not domiciled in this 2
state, the administrator may enter into a contract or agreement described under par. 3
(a) related to the person if the amount of the contingent fee under the contract or 4
agreement does not exceed 12 percent of the total amount of property reportable and 5
deliverable under this chapter that is disclosed by the audit.
(c) This subsection does not apply to information received from the federal 7
The administrator may not enter into a contract or other agreement as part 9
of an effort to administer this chapter that allows a person that is engaging in an 10
audit of another person's documents or records to use statistical sampling to estimate 11
the other person's liability unless the other person consents to the use of an estimate.
A claim made by a franchised motor vehicle dealer for 14
compensation under this section shall be either approved or disapproved within 30 15
days after the claim is submitted to the manufacturer, importer or distributor in the 16
manner and on the forms the manufacturer, importer or distributor reasonably 17
prescribes. An approved claim shall be paid within 30 days after its approval. If a 18
claim is not specifically disapproved in writing or by electronic transmission within 19
30 days after the date on which the manufacturer, importer or distributor receives 20
it, the claim shall be considered to be approved and payment shall follow within 30 21
days. A manufacturer, importer or distributor retains the right to audit claims for 22
a period of one year after the date on which the claim is paid and to charge back any 23
amounts paid on claims that are false or unsubstantiated. If there is evidence of 24
fraud, this subsection does not limit the right of the manufacturer to audit for longer
periods and charge back for any fraudulent claim, subject to the limitations period 2
under s. 893.93 (1) (b) (cm)
4218.0126 Promotional allowances.
A claim made by a franchised motor 5
vehicle dealer for promotional allowances or other incentive payments shall be either 6
approved or disapproved within 30 days after the claim is submitted to the 7
manufacturer, importer or distributor in the manner and on the forms the 8
manufacturer, importer or distributor reasonably prescribes. An approved claim 9
shall be paid within 30 days after its approval. If a claim is not specifically 10
disapproved in writing or by electronic transmission within 30 days after the date 11
on which the manufacturer, importer or distributor receives it, the claim shall be 12
considered to be approved and payment shall follow within 30 days after approval. 13
A manufacturer, importer or distributor retains the right to audit a claim for a period 14
of 2 years after the date on which the claim is paid and to charge back any amounts 15
paid on claims that are false or unsubstantiated. If there is evidence of fraud, this 16
section does not limit the right of the manufacturer to audit for longer periods and 17
charge back for any fraudulent claim, subject to the limitations period under s. 18
893.93 (1) (b) (cm)
Unless otherwise provided by law, an insurer shall promptly pay 21
every insurance claim. A claim shall be overdue if not paid within 30 days after the 22
insurer is furnished written notice of the fact of a covered loss and of the amount of 23
the loss. If such written notice is not furnished to the insurer as to the entire claim, 24
any partial amount supported by written notice is overdue if not paid within 30 days 25
after such written notice is furnished to the insurer. Any part or all of the remainder
of the claim that is subsequently supported by written notice is overdue if not paid 2
within 30 days after written notice is furnished to the insurer. Any payment shall 3
not be deemed overdue when the insurer has reasonable proof to establish that the 4
insurer is not responsible for the payment, notwithstanding that written notice has 5
been furnished to the insurer. For the purpose of calculating the extent to which any 6
claim is overdue, payment shall be treated as being made on the date a draft or other 7
valid instrument which is equivalent to payment was placed in the U.S. mail in a 8
properly addressed, postpaid envelope, or, if not so posted, on the date of delivery. 9
All overdue payments shall bear simple interest at the rate of 12 7.5
percent per year.
801.01 (2) Scope.
Chapters 801 to 847 govern procedure and practice in circuit 12
courts of this state in all civil actions and special proceedings whether cognizable as 13
cases at law, in equity or of statutory origin except where different procedure is 14
prescribed by statute or rule. Chapters 801 to 847 shall be construed
15and employed by the court and the parties
to secure the just, speedy and inexpensive 16
determination of every action and proceeding.
802.06 (1) of the statutes is renumbered 802.06 (1) (a).
(b) Upon the filing of a motion to dismiss under sub. (2) (a) 6., a 20
motion for judgment on the pleadings under sub. (3), or a motion for more definite 21
statement under sub. (5), all discovery and other proceedings shall be stayed for a 22
period of 180 days after the filing of the motion or until the ruling of the court on the 23
motion, whichever is sooner, unless the court finds good cause upon the motion of any 24
party that particularized discovery is necessary.
803.08 (11) of the statutes, as affected by 2017 Supreme Court 2
Order 17-03, is repealed and recreated to read:
803.08 (11) Interlocutory appeal of class certification.
(a) When 4
practicable after the commencement of an action brought as a class action, the court 5
shall determine by order whether it is to be so maintained. If the court finds that the 6
action should be maintained as a class action, it shall certify the action accordingly 7
on the basis of a written decision setting forth all reasons why the action may be 8
maintained and describing all evidence in support of the determination. An order 9
under this subsection may be altered, amended, or withdrawn at any time before the 10
decision on the merits. The court may direct appropriate notice to the class.
(b) An appellate court shall hear an appeal of an order granting or denying class 12
action certification, or denying a motion to decertify a class action, if a notice of 13
appeal is filed within 14 days after entry of the order. During the pendency of an 14
appeal under this subsection, all discovery and other proceedings shall be stayed, 15
except that the trial court shall retain sufficient jurisdiction over the case to consider 16
and implement a settlement of the action if a settlement is reached between the 17
804.01 (1) Discovery methods.
Parties may obtain discovery by one or more 20
of the following methods: depositions upon oral examination or written questions; 21
written interrogatories; production of documents or things or permission to enter 22
upon land or other property, for inspection and other purposes; physical and mental 23
examinations; and requests for admission. Unless the court orders otherwise under 24
sub. (3), and except as provided in s. ss.
804.015, 804.045, 804.08 (1) (am), and 804.09
the frequency of use of these methods is not limited.
(a) In general.
Parties may obtain discovery regarding any 3nonprivileged
matter, not privileged, which that
is relevant to the subject matter
4involved in the pending action, whether it relates to the any party's
claim or defense 5of the party seeking discovery or to the claim or defense of any other party, including
6the existence, description, nature, custody, condition and location of any books,
7documents, or other tangible things and the identity and location of persons having
8knowledge of any discoverable matter. It is not ground for objection that the
9information sought will be inadmissible at the trial if the information sought appears
10reasonably calculated to lead to the discovery of admissible evidence and
11proportional to the needs of the case, considering the importance of the issues at
12stake in the action, the amount in controversy, the parties' relative access to relevant
13information, the parties' resources, the importance of the discovery in resolving the
14issues, and whether the burden or expense of the proposed discovery outweighs its
15likely benefit. Information within this scope of discovery need not be admissible in
16evidence to be discoverable