895.38 History
History: 1993 a. 486.
895.41
895.41
Employe's cash bonds to be held in trust; duty of employer; penalty. 895.41(1)
(1) Where any person requests any employe to furnish a cash bond, the cash constituting such bond shall not be mingled with the moneys or assets of such person demanding the same, but shall be deposited by such person in a bank, trust company, savings bank or savings and loan association doing business in this state whose deposits or shares are insured by a federal agency to the extent of $10,000, as a separate trust fund, and it shall be unlawful for any person to mingle such cash received as a bond with the moneys or assets of any such person, or to use the same. No employer shall deposit more than $10,000 with any one depository. The bank book, certificate of deposit or other evidence thereof shall be in the name of the employer in trust for the named employe, and shall not be withdrawn except after an accounting had between the employer and employe, said accounting to be had within 10 days from the time relationship is discontinued or the bond is sought to be appropriated by the employer. All interest or dividends earned by such sum deposited shall accrue to and belong to the employe and shall be turned over to said employe as soon as paid out by the depository. Such deposit shall at no time and in no event be subject to withdrawal except upon the signature of both the employer and employe or upon a judgment or order of a court of record.
895.41(2)
(2) In the event of the failure of any person, such moneys on deposit shall constitute a trust fund for the benefit of the persons who furnished such bonds and shall not become the property of the assignee, receiver or trustee of such insolvent person.
895.41(3)(a)(a) In case an employe who was required to give a cash bond dies before the cash bond is withdrawn in the manner provided in
sub. (1), the accounting and withdrawal may be effected not less than 5 days after the employe's death and before the filing of a petition for letters testamentary or of administration in the matter of the decedent's estate, by the employer with any of the following, in the following order:
895.41(3)(a)2.
2. The decedent's children if the decedent shall leave no surviving spouse.
895.41(3)(a)3.
3. The decedent's father or mother if the decedent shall leave no surviving spouse or children.
895.41(3)(a)4.
4. The decedent's brother or sister if the decedent shall leave no surviving spouse, children or parent.
895.41(3)(b)
(b) The accounting and withdrawal under
par. (a) shall be effected in the same manner and with like effect as if such accounting and withdrawal were accomplished by and between the employer and employe as provided in
sub. (1).
895.41(3)(c)
(c) The amount of the cash bond, together with principal and interest, to which the deceased employe would have been entitled had the deceased employe lived, shall, as soon as paid out by the depository, be turned over to the relative of the deceased employe effecting the accounting and withdrawal with the employer. The turning over shall be a discharge and release of the employer to the amount of the payment.
895.41(3)(d)
(d) If no relatives designated under
par. (a) survive, the employer may apply the cash bond, or so much thereof as may be necessary, to paying creditors of the decedent in the order of preference prescribed in
s. 859.25 for satisfaction of debts by executors and administrators. The making of payment under this paragraph shall be a discharge and release of the employer to the amount of the payment.
895.41(4)
(4) Any person who violates this section shall be punished by a fine equal to the amount of the bond or by imprisonment for not less than 10 days nor more than 60 days, or both.
895.42
895.42
Deposit of undistributed money and property by administrators and others. 895.42(1)
(1) In case in any proceeding in any court of record it is determined that moneys or other personal property in the custody of or under the control of any administrator, executor, trustee, receiver or other officer of the court, belongs to a natural person if the person is alive, or to an artificial person if it is in existence and entitled to receive, otherwise to some other person, and the court or judge making such determination finds that there is not sufficient evidence showing that the natural person first entitled to take is alive, or that the artificial person is in existence and entitled to receive, or in case such money or other personal property, including any legacy or share of intestate property cannot be delivered to the legatee or heir or person entitled thereto because of the fact that such person is a member of the military or naval forces of the United States or any of its allies or is engaged in any of the armed forces abroad or with the American Red Cross society or other body or other similar business, then in either or any of such cases, the court or judge may direct that the officer having custody or control of such money or other personal property, deposit the same in any trust company, or any state or national bank within the state of Wisconsin authorized to exercise trust powers, taking its receipt therefor, and the said receipt shall, to the extent of the deposit so made, constitute a complete discharge of the said officer in any accounting by the officer made in said proceeding.
895.42(2)
(2) In case such deposit is directed to be made, the court shall require the trust company or bank in which said deposit is ordered to be made, as a condition of the receipt thereof, to accept and handle, manage and invest the same as trust funds to the same extent as if it had received the same as a testamentary trust, unless the court shall expressly otherwise direct, except that the reports shall be made to the court of its appointment.
895.42(3)
(3) No distribution of the moneys or personal property so deposited shall be made by the depository as such trustee or otherwise without an order of the court on notice as prescribed by
s. 879.03, and the jurisdiction of the court in the proceeding will be continued to determine, at any time at the instance of any party interested, the ownership of said funds, and to order their distribution.
895.42 History
History: 1973 c. 90;
1993 a. 486.
895.43
895.43
Intentional killing by beneficiary of contract. The rights of a beneficiary of a contractual arrangement who kills the principal obligee under the contractual arrangement are governed by
s. 854.14.
895.435
895.435
Intentional killing by beneficiary of certain death benefits. The rights of a beneficiary to receive benefits payable by reason of the death of an individual killed by the beneficiary are governed by
s. 854.14.
895.437
895.437
Use of lodging establishments. 895.437(2)
(2) Any person who procures lodging in a lodging establishment and permits or fails to take action to prevent any of the following activities from occurring in the lodging establishment is subject to the penalties provided in
sub. (5):
895.437(2)(a)
(a) Consumption of an alcohol beverage by any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age.
895.437(2)(b)
(b) Illegal use of a controlled substance or controlled substance analog.
895.437(3)
(3) An owner or employe of a lodging establishment may deny lodging to an adult if the owner or employe reasonably believes that consumption of an alcohol beverage by an underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age, or illegal use of a controlled substance or controlled substance analog, may occur in the area of the lodging establishment procured.
895.437(4)
(4) An owner or employe of a lodging establishment may require a cash deposit or use of a credit card at the time of application for lodging.
895.437(5)
(5) A person who violates
sub. (2) or a local ordinance which strictly conforms to
sub. (2) shall forfeit:
895.437(5)(a)
(a) Not more than $500 if the person has not committed a previous violation within 12 months of the violation; or
895.437(5)(b)
(b) Not less than $200 nor more than $500 if the person has committed a previous violation within 12 months of the violation.
895.44
895.44
Exemption from civil liability for furnishing safety inspection or advisory services. The furnishing of, or failure to furnish, safety inspection or advisory services intended to reduce the likelihood of injury, death or loss shall not subject a state officer, employe or agent, or an insurer, the insurer's agent or employe undertaking to perform such services as an incident to insurance, to liability for damages from injury, death or loss occurring as a result of any act or omission in the course of the safety inspection or advisory services. This section shall not apply if the active negligence of the state officer, employe or agent, or of the insurer, the insurer's agent or employe created the condition that was the proximate cause of injury, death or loss. This section shall not apply to an insurer, the insurer's agent or employe performing the safety inspection or advisory services when required to do so under the provisions of a written service contract.
895.44 History
History: 1991 a. 39.
895.46
895.46
State and political subdivisions thereof to pay judgments taken against officers. 895.46(1)(a)(a) If the defendant in any action or special proceeding is a public officer or employe and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employe and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employe in excess of any insurance applicable to the officer or employe shall be paid by the state or political subdivision of which the defendant is an officer or employe. Agents of any department of the state shall be covered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employe, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employe did not act within the scope of employment. The duty of a governmental unit to provide or pay for the provision of legal representation does not apply to the extent that applicable insurance provides that representation. If the employing state agency or the attorney general denies that the state officer, employe or agent was doing any act growing out of or committed in the course of the discharge of his or her duties, the attorney general may appear on behalf of the state to contest that issue without waiving the state's sovereign immunity to suit. Failure by the officer or employe to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employe as soon as reasonably possible is a bar to recovery by the officer or employe from the state or political subdivision of reasonable attorney fees and costs of defending the action. The attorney fees and expenses shall not be recoverable if the state or political subdivision offers the officer or employe legal counsel and the offer is refused by the defendant officer or employe. If the officer, employe or agent of the state refuses to cooperate in the defense of the litigation, the officer, employe or agent is not eligible for any indemnification or for the provision of legal counsel by the governmental unit under this section.
895.46(1)(am)
(am) If a court determines that costs are awardable to an employe or official who has been provided representation by a governmental unit under
par. (a), the court shall award those costs to the unit of government that provided the representation.
895.46(1)(b)
(b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:
895.46(1)(b)1.
1. Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under
s. 165.85 (4) (b) 1. and, if applicable, the recertification programs under
s. 165.85 (4) (bn) 1., or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or
895.46(1)(c)
(c) This subsection does not apply to any action or special proceeding brought by a county against its county sheriff if the action or proceeding is determined in favor of the county.
895.46(1)(d)
(d) On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in
s. 40.02 (48) (b) 3., are covered by this subsection. The county board shall adopt written policies for payments under this subsection on behalf of any other person, provided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in
s. 165.85 (2) (c), and the county may make the payments upon approval by the county board.
895.46(1)(e)
(e) Any nonprofit corporation operating a museum under a lease agreement with the state historical society, and all officers, directors, employes and agents of such a corporation, and any local emergency planning committee appointed by a county board under
s. 59.54 (8) (a) and all members of such a committee, are state officers, employes or agents for the purposes of this subsection.
895.46(2)
(2) Any town officer held personally liable for reimbursement of any public funds paid out in good faith pursuant to the directions of electors at any annual or special town meeting shall be reimbursed by the town for the amount of the judgment for damages and costs entered against the town officer.
895.46(3)
(3) The protection afforded by this section shall apply to any state officer, employe or agent while operating a state-owned vehicle for personal use in accordance with
s. 20.916 (7).
895.46(4)
(4) The protection afforded by this section applies to members of the board of governors created under
s. 619.04 (3), members of a committee or subcommittee of that board of governors, members of the patients compensation fund peer review council created under
s. 655.275 (2) and persons consulting with that council under
s. 655.275 (5) (b), with respect to judgments, attorney fees and costs awarded before, on or after April 25, 1990.
895.46(5)
(5) The protection afforded by this section applies to any of the following:
895.46(5)(a)
(a) A volunteer health care provider who provides services under
s. 146.89, for the provision of those services.
895.46(6)
(6) The protection afforded by this section applies to any criminal action under
s. 291.97 (2) or
293.87 (2) or under
7 USC 136L (b),
15 USC 2616 (b),
33 USC 1319 (c),
42 USC 2284,
6928 (d) and (e),
6973 (b),
6992 (b) and (c),
7413 (c),
9603 (b),
9606 (b) and
11045 (b) or 49 USC appendix 1809 (b) that is commenced against a state officer or state employe who is proceeded against in his or her official capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous substances, as defined in
s. 289.01 (11), if that officer or employe is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employe acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this section applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protection includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.
895.46(7)
(7) The protection afforded by this section does not apply to any law enforcement officer of another state acting in Wisconsin under an agreement authorized under
s. 175.46.
895.46(8)
(8) The protection afforded by this section applies to any owner of land within a drainage district established under
ch. 88 who undertakes work on a drain if the work is approved by the drainage board.
895.46 History
History: 1973 c. 333; Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 895.45;
1975 c. 81,
198,
199; Stats. 1975 s. 895.46;
1977 c. 29;
1979 c. 74,
221;
1981 c. 20;
1981 c. 96 s.
67;
1981 c. 314 s.
136;
1983 a. 6;
1983 a. 27 s.
2202 (32);
1985 a. 29,
66;
1987 a. 342;
1987 a. 403 s.
256;
1989 a. 31,
115,
187,
206,
359;
1991 a. 245,
269;
1993 a. 27,
28,
49,
238,
456,
490;
1995 a. 201,
227,
411;
1997 a. 35.
895.46 Cross-reference
Cross-reference: See s.
775.06 for special procedure applying to state law enforcement officers.
895.46 Annotation
Highway commission supervisors who were responsible for the placement of highway warning signs may be sued if a sign is not placed in accordance with commission rules. They cannot claim the state's immunity from suit. Chart v. Dvorak, 57 W (2d) 92, 203 NW (2d) 673.
895.46 Annotation
"Litigation" under sub. (1) refers only to civil proceedings. Sheriffs are not "public officers" under sub. (1), 1981 stats. Bablitch & Bablitch v. Lincoln County, 82 W (2d) 574, 263 NW (2d) 218.
895.46 Annotation
Policy behind (1) discussed. Thuermer v. Village of Mishicot, 86 W (2d) 374, 272 NW (2d) 409 (Ct. App. 1978).
895.46 Annotation
Public employes' insurer had no right of recovery under s. 270.58 (1), 1969 stats. Horace Mann Ins. Co. v. Wauwatosa Bd. of Ed. 88 W (2d) 385, 276 NW (2d) 761 (1979).
895.46 Annotation
State could not be sued as indemnitor under s. 270.58 (1) [now s. 895.46 (1)]. Fiala v. Voight, 93 W (2d) 337, 286 NW (2d) 824 (1980).
895.46 Annotation
State may not be sued directly for tortious acts of its employes. Miller v. Smith, 100 W (2d) 609, 302 NW (2d) 468 (1981).
895.46 Annotation
"Color of law" element of 42 USC 1983 lawsuit is not identical to "scope of employment" element under (1). Cameron v. Milwaukee, 102 W (2d) 448, 307 NW (2d) 164 (1981).
895.46 Annotation
Question of whether aldermen were acting within scope of employment was inappropriately decided by summary judgment. Schroeder v. Schoessow, 108 W (2d) 49, 321 NW (2d) 131 (1982).
895.46 Annotation
Once governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay, 112 W (2d) 609, 334 NW (2d) 235 (1983).
895.46 Annotation
Sub. (1) applied to forfeiture action against police officer. Crawford v. City of Ashland, 134 W (2d) 369, 396 NW (2d) 781 (Ct. App. 1986).
895.46 Annotation
Phrase "any action" in (1) (a) means trial in which issue of "scope of employment" is essential and evidence on issue is introduced and argued. Desotelle v. Continental Cas. Co. 136 W (2d) 13, 400 NW (2d) 524 (Ct. App. 1986).
895.46 Annotation
In "scope of employment" cases under (1) (a), consideration must be given to whether employe was "actuated," in some measure, by purpose to serve employer. Olson v. Connerly, 156 W (2d) 488, 457 NW (2d) 479 (1990).
895.46 Annotation
A former school employe sued by the school district over her employment contract was not entitled to costs under sub. (1) (a). Pardeeville Area School District v. Bomber, 214 W (2d) 396, 571 NW (2d) 189 (Ct. App. 1997).
895.46 Annotation
A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. constitution does not apply. Abraham v. Piechowski, 13 F Supp 2d 1023 (1998).
895.46 Annotation
University of Wisconsin has no authority to agree to hold harmless county that incurs liability because of university officer's torts, but common law of indemnification would require officer to indemnify that county and statutory indemnification would require state to indemnify officer when acting in the scope of employment.
78 Atty. Gen. 1.
895.46 Annotation
State Emergency Response Board Committee and Local Emergency Planning Committee subcommittee members appointed by a county board are entitled to indemnity for damage liability under s. 895.46 and legal representation by the attorney general under s. 165.25.
81 Atty. Gen. 17.
895.46 Annotation
This section may require indemnification for actions which are not intended to benefit employer when those actions further the objectives of employment. Hibma v. Odegaard, 769 F (2d) 1147 (1985).
895.46 Annotation
See note to 893.80 citing Graham v. Sauk Prairie Police Com'n. 915 F (2d) 1085 (1990).
895.46 Annotation
Sub. (1) does not prevent a state official from asserting "good faith" as a defense to a charge of infringement of civil rights. Clarke v. Cady, 358 F Supp. 1156.
895.46 Annotation
Purpose of this section is not to transform any suit against state employe into suit against state, but to shield state employes from monetary loss in tort suits. Ware v. Percy, 468 F Supp. 1266 (1979).
895.46 Annotation
County could not be held liable for civil rights judgment against county judge where judgment found that judge was not carrying out duties of office at relevant time. Harris v. County of Racine, 512 F Supp. 1273 (1981).
895.46 Annotation
If an employe is part of an inter-municipal team under s. 66.305, the agency requesting the team's services is the de facto employe for purposes of indemnification under this section. Leibenstein v. Crowe, 826 F Supp. 1174 (1992).
895.47
895.47
Indemnification of the Wisconsin state agencies building corporation and the Wisconsin state public building corporation. If the Wisconsin state agencies building corporation or the Wisconsin state public building corporation is the defendant in an action or special proceeding in its capacity as owner of facilities occupied by any department or agents of any department of state government, the judgment as to damages and costs shall be paid by the state from the appropriation made under
s. 20.865 (1) (fm). The state, when it does not provide legal counsel to the defendant, its members, officers or employes, shall pay reasonable attorney fees and costs of defending the action regardless of the results of the litigation, unless the court or jury finds that the member, officer or employe did not act within the scope of that person's employment. Failure by the defendant to give notice to the department of justice of an action or special proceeding commenced against it, its members, officers or employes as soon as reasonably possible shall bar recovery by the defendant, its members, officers or employes from the state under this section. Attorney fees and expenses may not be recovered if the state offers the member, officer or employe legal counsel and the offer is refused.
895.47 History
History: 1977 c. 344,
447.
