CIVIL PROCEDURE — MISCELLANEOUS PROVISIONS
Motions, where heard; stay of proceedings.
Orders, how vacated and modified.
Proceedings, where held; restriction as to making orders.
Copy of paper may be used, when.
Irregularities and lack of jurisdiction over the parties waived on appeal; jurisdiction exercised; transfer to proper court.
Borrowing court files regulated.
Settlements in behalf of minors or individuals adjudicated incompetent; judgments.
Orders: rendition and entry.
Suing by fictitious name or as unknown; partners' names unknown.
Telephone and audiovisual proceedings.
Penalty for certain actions by prisoners.
Ch. 807 Note
Chapter 807 was created by Sup. Ct. Order, 67 Wis. 2d 585
, 740 (1975), which contains explanatory notes. Statutes prior to the 1983-84 edition also contain these notes.
In all civil actions and proceedings in circuit court, the parties and court officials shall use the standard court forms adopted by the judicial conference under s. 758.18 (1)
, commencing the date on which the forms are adopted. If an applicable court form has been adopted under s. 758.18 (2)
, that form may be used in lieu of the standard court form.
A party or court official may supplement a court form with additional material.
A court may not dismiss a case, refuse a filing or strike a pleading for failure of a party to use a standard court form under sub. (1)
or to follow format rules but shall require the party to submit, within 10 days, a corrected form and may impose statutory fees or costs or both.
If the judicial conference does not create a standard court form for an action or pleading undertaken by a party or court official, the party or court official may use a format consistent with any statutory or court requirement for the action or pleading.
Sup. Ct. Order No. 98-01
, 228 Wis. 2d xiii (2000); Sup. Ct. Order No. 05-02
, 2005 WI 41, 278 Wis. 2d xxxv.
Settlement offers. 807.01(1)(1)
After issue is joined but at least 20 days before the trial, the defendant may serve upon the plaintiff a written offer to allow judgment to be taken against the defendant for the sum, or property, or to the effect therein specified, with costs. If the plaintiff accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the plaintiff may file the offer, with proof of service of the notice of acceptance, and the clerk must thereupon enter judgment accordingly. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of judgment is not accepted and the plaintiff fails to recover a more favorable judgment, the plaintiff shall not recover costs but defendant shall recover costs to be computed on the demand of the complaint.
After issue is joined but at least 20 days before trial, the defendant may serve upon the plaintiff a written offer that if the defendant fails in the defense the damages be assessed at a specified sum. If the plaintiff accepts the offer and serves notice thereof in writing before trial and within 10 days after receipt of the offer and prevails upon the trial, either party may file proof of service of the offer and acceptance and the damages will be assessed accordingly. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer is not accepted and if damages assessed in favor of the plaintiff do not exceed the damages offered, neither party shall recover costs.
After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.
If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at an annual rate equal to 1 percent plus the prime rate in effect on January 1 of the year in which the judgment is entered if the judgment is entered on or before June 30 of that year or in effect on July 1 of the year in which the judgment is entered if the judgment is entered after June 30 of that year, as reported by the federal reserve board in federal reserve statistical release H. 15, on the amount recovered from the date of the offer of settlement until the amount is paid. Interest under this section is in lieu of interest computed under ss. 814.04 (4)
and 815.05 (8)
(5) Subsections (1)
apply to offers which may be made by any party to any other party who demands a judgment or setoff against the offering party.
Sup. Ct. Order, 67 Wis. 2d 585, 741 (1975); Sup. Ct. Order, 67 Wis. 2d vii (1975); 1975 c. 218
; 1979 c. 271
; 1981 c. 314
; 1983 a. 253
; 1985 a. 340
; 2011 a. 69
For tender of payment, see s. 895.14
Sub. (3) applies to cases of both liquidated and unliquidated damages. Graves v. Travelers Ins. Co. 66 Wis. 2d 124
, 224 N.W.2d 398
Subs. (3) and (4) do not apply to a rejected joint settlement offer made on behalf of individual plaintiffs. White v. General Casualty Company of Wisconsin, 118 Wis. 2d 433
, 348 N.W.2d 614
(Ct. App. 1984).
Defendants who are jointly and severally liable may submit joint offers of judgments to an individual plaintiff under sub. (1). Denil v. Integrity Mutual Insurance Co. 135 Wis. 2d 373
, 401 N.W.2d 13
(Ct. App. 1986).
Under sub. (3), a plaintiff suing multiple defendants under multiple theories, one of which involves several liability, must make separate settlement offers. Smith v. Keller, 151 Wis. 2d 264
, 444 N.W.2d 396
(Ct. App. 1989).
Sub. (4) provides for simple, rather than compound, interest to accrue on the amount recovered. The relationship between sub. (4) and s. 628.46 (1) is discussed. Upthegrove v. Lumbermans Ins. Co. 152 Wis. 2d 7
, 447 N.W.2d 367
(Ct. App. 1989).
While the inclusion of a reference to this section is preferable, a settlement offer that should reasonably be understood as an offer pursuant to s. 807.01 is sufficient to invoke its provisions. Bauer v. Piper Industries, Inc. 154 Wis. 2d 758
, 454 N.W.2d 28
(Ct. App. 1990).
A plaintiff's offer of settlement addressed to multiple defendants reciting one aggregate settlement figure for all claims did not allow the defendants to individually assess their own exposure and is not valid for sanctions purposes. Wilber v. Fuchs, 158 Wis. 2d 158
, 461 N.W.2d 803
(Ct. App. 1990).
A plaintiff's single offer of settlement to two individual defendant's and the insurer of both, within the policy limits, invoked sanctions under this section as the insurer was the only party interested in the settlement and could fully evaluate its exposure. Testa v. Farmers Ins. Exchange, 164 Wis. 2d 296
, 474 N.W.2d 776
(Ct. App. 1991).
When damages are subject to a statutory limit, costs and interest awarded under this section are in addition to the damage award. Gorman v. Wausau Ins. Cos. 175 Wis. 2d 320
, 499 N.W.2d 245
(Ct. App. 1993).
An insurer was not subject to sanctions under this section when, after initially rejecting the plaintiff's offer to settle, new facts resulted in the insurer's submitting its own offer to settle in the same amount. Oliver v. Heritage Mutual Insurance Co. 179 Wis. 2d 1
, 505 N.W.2d 452
(Ct. App. 1993).
Separate offers to the defendant and the defendant's insurer in the same amount, which left unclear whether acceptance by the insurer also released the insured, did not invoke sanctions under this section when the verdict exceeded the amount of the individual offers. Cue v. Carthage College, 179 Wis. 2d 175
, 507 N.W.2d 109
(Ct. App. 1993).
Common law prejudgment interest and 12% interest under sub. (4) are not to be combined. Erickson v. Gunderson, 183 Wis. 2d 106
, 515 N.W.2d 293
(Ct. App. 1994).
Interest under sub. (4) does not accrue on an award of double costs under sub. (3). American Motorists Insurance Co. v. R & S Meats, Inc. 190 Wis. 2d 197
, 526 N.W.2d 791
(Ct. App. 1994).
A party making a settlement offer must do so in clear and unambiguous terms. A party's mere offer to settle for a specified sum when a part of the party's claim had been admitted and already reduced to judgment was ambiguous. Stan's Lumber, Inc. v. Fleming, 196 Wis. 2d 554
, 538 N.W.2d 849
(Ct. App. 1995), 94-1258
In a case involving a subrogated defendant, failure of an offer to specify whether payment to the subrogated defendant would be made from the settlement proceeds left the defendants unable to fully evaluate their exposure so that the offer was not valid for purposes of sub. (3). Ritt v. Dental Care Associates, S.C. 199 Wis. 2d 48
, 543 N.W.2d 852
(Ct. App. 1995), 94-3344
A judgment against a defendant to whom an offer to settle was made that is equal to or larger than the offer entitles the plaintiff to interest under sub. (4) on the amount recovered against the party to whom the offer was made. Blank v. USAA Property & Casualty Ins. Co. 200 Wis. 2d 270
, 546 N.W.2d 512
(Ct. App. 1996), 95-1806
Under sub. (3), the offer and judgment must be compared exclusive of any costs. Northridge Co. v. W.R. Grace & Co. 205 Wis. 2d 267
, 556 N.W.2d 345
(Ct. App. 1996), 95-1193
A single offer made to the plaintiff on condition that the plaintiff "indemnify or otherwise satisfy any existing related subrogated claims" invoked sub. (1) when the plaintiff knew the amount of the only subrogated claims and could fully and fairly evaluate the offer. Staehler v. Beuthin, 206 Wis. 2d 610
, 557 N.W.2d 487
(Ct. App. 1996), 95-3295
In sub. (4), "amount recovered" means that portion of a verdict for which a party is responsible. Nelson v. McLaughlin, 211 Wis. 2d 487
, 565 N.W.2d 123
Sub. (1) is procedural in nature and may be applied in federal claims brought in state court unless it defeats a substantial federal right. Duello v. Board of Regents, 220 Wis. 2d 554
, 583 N.W.2d 863
(Ct. App. 1998), 97-2608
An insurer has a fiduciary duty to clarify a settlement offer made to it that is ambiguous with respect to whether the offer applies to only the insurer or to both the insurer and the insured. Failure to clarify the ambiguity results in a valid offer under this section. Prosser v. Leuck, 225 Wis. 2d 126
, 592 N.W.2d 178
Sub. (3) provides no exceptions for assessments of double costs. Costs associated with determining coverage are subject to doubling under sub. (3). Prosser v. Leuck, 225 Wis. 2d 126
, 592 N.W.2d 178
A party with multiple claims is not required to itemize a settlement offer in order to invoke the double costs and interest provisions of this section. Batteries Plus, LLC v. Mohr, 2000 WI App 153
, 237 Wis. 2d 776
, 615 N.W.2d 196
Attorney's fees and costs, regardless of why they are awarded, are not part of the "amount recovered" under sub. (4) but rather are a shifting of the costs of litigation, and separate from the recovery. Dobbratz Trucking & Excavating v. PACCAR, Inc. 2002 WI App 138
, 256 Wis. 2d 205
, 647 N.W.2d 315
When a defendant is sued under a fee-shifting statute, the defendant is on notice that the plaintiff is seeking not only damages but also reasonable attorney fees. Accordingly, when making an offer of judgment, the defendant is to include such fees and to so inform the plaintiff. The trial court should also include attorney fees in the judgment when it measures the offer against the judgment under sub. (1). Pachowitz v. LeDoux, 2003 WI App 120
, 265 Wis. 2d 631
, 666 N.W.2d 88
It is not necessary that a judgment under sub. (4) must involve litigation and result in a verdict. A stipulated judgment greater than the plaintiff's earlier settlement offer entitled the plaintiff to double costs and interest. Tomsen v. Secura Insurance, 2003 WI App 187
, 266 Wis. 2d 491
, 668 N.W.2d 794
The test for whether a given provision may be included in a settlement offer valid under this section is not reasonableness, but whether the provision specifies a remedy that could be imposed by the court. An offer demanding payment within 15 days of the offer was invalid because a judge could not enter a judgment requiring that the defendant tender payment within 15 days. DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Limited Partnership, 2004 WI 92
, 273 Wis. 2d 577
, 682 N.W.2d 839
"Taxable costs" in sub. (3) means those costs allowed as items of cost under s. 814.04. "Costs" in the first part of sub. (3) means "taxable costs." Costs recoverable under s. 814.04 include fees allowed by law, which includes attorney's fees allowed by law that represent a necessary cost of litigation to which a prevailing party is entitled under s. 814.04 (2). Alberte v. Anew Health Care Services, Inc. 2004 WI App 146
, 275 Wis. 2d 571
, 685 N.W.2d 614
The pendency of a motion to dismiss part of a plaintiff's claim did not absolve the plaintiff from having to act on a statutory offer. The plaintiffs could have fully and fairly evaluated the offer despite the pending motion. If an offer is plain on its face and offers to settle the entire claim, it is an offer to do so despite the vagaries of suit. Mews v. Beaster, 2005 WI App 53
, 279 Wis. 2d 507
, 694 N.W.2d 476
When the court of appeals reversed the trial court to reinstate a jury verdict that was clearly less than the defendant's original offer of settlement that the plaintiff rejected, the trial court was ordered to offset the costs in favor of the defendant against the judgment awarded to the plaintiff under this section and to enter the new judgment for the balance, under s. 814.12. Hamdan v. Dawicki, 2006 WI App 209
, 296 Wis. 2d 623
, 724 N.W. 2d 234
A child recipient of an offer was unable to fully and fairly evaluate the terms of the offer when 1) it imposed an obligation for medical expenses upon a minor, when the legal obligation rested with the parent; 2) it employed overly broad language that imposed responsibility for any and all claims, rather than existing claims; and 3) the context in which the offer was made, specifically in light of requests for clarification and a contemporaneous offer to the child's parent, created confusion as to the child's obligations under the offer. Bockin v. Farmers Insurance Exchange, 2006 WI App 220
, 296 Wis. 2d 694
, 723 N.W. 2d 741
Sub. (4) makes no distinction between pre- and postjudgment interest. It specifies that interest is calculated on a single amount, "the amount recovered," over one period of time, from the date of the offer of settlement until the amount is paid. The defendant's 2-stage calculation of interest, utilizing two time periods and two amounts recovered, could not be reconciled with the language of sub. (4). Sub. (4) provides for simple, not compound, interest. Morrison v. Rankin, 2008 WI App 158
, 314 Wis. 2d 376
, 760 N.W.2d 441
When the case involves a subrogated party with a separate claim against the defendants, the plaintiff's offer of settlement must account for that separate claim. Because each separately owns part of the claim against the tortfeasor, a settlement between the insured and the tortfeasor that does not involve the subrogated insurer as a party, or provide for payment of the subrogated interest, leaves unsatisfied the part of the claim owned by the subrogated party. Hadrian v. State Farm Mutual Automobile Insurance Company, 2008 WI App 188
, 315 Wis. 2d 529
, 763 N.W.2d 215
A single offer of settlement from an insured and its subrogated carrier was enforceable because it was clear that it encompassed both the insured's and its subrogated carrier's claims. Industrial Risk Insurers v. American Engineering Testing, Inc. 2009 WI App 62
, 318 Wis. 2d 148
, 769 N.W.2d 82
Under Prosser, an insurer has a duty to clarify an ambiguous settlement offer when the ambiguity related to the settlement offer's failure to address a subrogated claim. The insurer's fiduciary duty regarding settlement mandates that the insurer must clarify an ambiguous offer in order to fully protect its insured's interests. Kubichek v. Kotecki, 2011 WI App 32
, 332 Wis. 2d 522
, 796 N.W.2d 858
Subs. (3) and (4) may be utilized in diversity actions in federal courts. Dillingham-Healy v. Milwaukee Metropolitan Sewerage District, 796 F. Supp. 1191
The new Wisconsin rules of civil procedure: Chapters 805-807. Graczyk, 59 MLR 671.
Offers of Judgment in Wisconsin Courts. Crinion. Wis. Law. Feb. 1991.
Meeting Head On: Offers of Settlement and an Insurer's Potential Bad Faith. Warch. Wis. Law. Oct. 1996.
Motions, where heard; stay of proceedings.
Except as provided in s. 807.13
or when the parties stipulate otherwise and the court approves, motions in actions or proceedings in the circuit court must be heard within the circuit where the action is triable. Orders out of court, not requiring notice, may be made by the presiding judge of the court in any part of the state. No order to stay proceedings after a verdict, report or finding in any circuit court may be made by a circuit or supplemental court commissioner. No stay of proceedings for more than 20 days may be granted except upon previous notice to the adverse party.
Sup. Ct. Order, 67 Wis. 2d 585, 742 (1975); 1977 c. 449
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2001 a. 61
Judicial Council Note, 1988: The section is amended to except telephone hearings on motions from the requirement that motions be heard in the circuit where the action is triable. The amendment also permits the court to hear motions elsewhere upon stipulation of the parties. [Re Order effective Jan. 1, 1988]
Orders, how vacated and modified.
An order made out of court without notice may be vacated or modified without notice by the judge who made it. An order made upon notice shall not be modified or vacated except by the court upon notice, but the presiding judge may suspend the order, in whole or in part, during the pendency of a motion to the court to modify or vacate the order.
History: Sup. Ct. Order, 67 Wis. 2d 585, 743 (1975).
Proceedings, where held; restriction as to making orders. 807.04(1)(1)
Except as provided under sub. (2)
, all trials, and all hearings at which oral testimony is to be presented, shall be held in open court. The court may make any order which a judge or a circuit or supplemental court commissioner has power to make.
All hearings in which oral testimony is to be presented in an action or special proceeding that is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.
, shall be conducted by telephone, interactive video and audio transmission or other live interactive communication without removing him or her from the facility or institution if his or her participation is required or permitted and if the official having custody of him or her agrees. The court in which the action or special proceeding is commenced shall, when feasible, also allow counsel, witnesses and other necessary persons to participate in the hearing by telephone, interactive video and audio transmission or other live interactive communication. The procedures and policies under s. 807.13
shall apply to the extent feasible.
Sup. Ct. Order, 67 Wis. 2d 585, 743 (1975); 1977 c. 187
; 1997 a. 133
; 2001 a. 61
No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court or during a proceeding conducted under s. 807.13
and entered in the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney.