895.485 Note
NOTE: 1987 Wis. Act 377, which created this section, has a prefatory note explaining the act.
895.485 Cross-reference
Cross Reference: See also ch.
HFS 37, Wis. adm. code.
895.486
895.486
Civil immunity exemption; reports of insurance fraud. 895.486(1)(1) In this section, "insurance fraud" means the presentation of any statement, document or claim, or the preparation of a statement, document or claim with the knowledge that the statement, document or claim will be presented, that the person knew or should have known contained materially false, incomplete or misleading information concerning any of the following:
895.486(1)(a)
(a) An application for the issuance of an insurance policy.
895.486(1)(b)
(b) A claim for payment, reimbursement or benefits payable under an insurance policy.
895.486(1)(c)
(c) A payment made in accordance with the terms of an insurance policy.
895.486(2)
(2) Any person who, absent malice, files a report with or furnishes information concerning suspected, anticipated, or completed insurance fraud is immune from civil liability for his or her acts or omissions in filing the report or furnishing the information to any of the following or to their agents, employees or designees:
895.486(2)(c)
(c) The National Association of Insurance Commissioners.
895.486(2)(d)
(d) Any governmental agency established to detect and prevent insurance fraud.
895.486(2)(e)
(e) Any nonprofit organization established to detect and prevent insurance fraud.
895.486(2)(f)
(f) Any insurer or authorized representative of an insurer.
895.486(3)
(3) Any information furnished by an insurer in response to a report or information furnished under
sub. (2) is confidential and may be made public only if required in a civil or criminal action.
895.486(4)
(4) If a civil action is commenced against a person for damages related to the filing of a report or the furnishing of information under
sub. (2) and the court determines that the person is immune from civil liability for his or her acts or omissions in filing the report or furnishing the information, the person filing the report or furnishing the information shall recover costs under
ch. 814 and, notwithstanding
s. 814.04 (1), reasonable attorney fees.
895.486 History
History: 1995 a. 177.
895.487
895.487
Civil liability exemption; employment references. 895.487(1)(c)
(c) "Reference" means a statement about an employee's job performance or qualifications for employment and includes a statement about an employee's job performance or qualifications for employment provided pursuant to the settlement of a dispute between the employer and employee or provided pursuant to an agreement between the employer and employee relating to the termination of the employee's employment.
895.487(2)
(2) An employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from all civil liability that may result from providing that reference. The presumption of good faith under this subsection may be rebutted only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference, that the employer made the reference maliciously or that the employer made the reference in violation of
s. 111.322.
895.487 History
History: 1995 a. 441;
1997 a. 35.
895.487 Annotation
The malice referred to in sub. (2) is express malice, which requires a showing of ill will, bad intent, envy, spite, hatred, revenge, or other bad motives against the person defamed, and not actual malice, which requires statements made with knowledge of falsity or with reckless disregard for the truth. Gibson v. Overnite Transportation Co. 2003 WI App 210,
267 Wis. 2d 415,
671 N.W.2d 388,
02-3158.
895.49
895.49
Certain agreements to limit or eliminate tort liability void. 895.49(1)(1) Any provision to limit or eliminate tort liability as a part of or in connection with any contract, covenant or agreement relating to the construction, alteration, repair or maintenance of a building, structure, or other work related to construction, including any moving, demolition or excavation, is against public policy and void.
895.49(2)
(2) This section does not apply to any insurance contract or worker's compensation plan.
895.49(3)
(3) This section shall not apply to any provision of any contract, covenant or agreement entered into prior to July 1, 1978.
895.49 History
History: 1977 c. 441; Stats. 1977 s. 895.47;
1977 c. 447; Stats. 1977 s. 895.49.
895.49 Annotation
This section did not void an indemnity clause in a contract. Gerdmann v. U.S. Fire Insurance Co.
119 Wis. 2d 367,
350 N.W.2d 730 (Ct. App. 1984).
895.495
895.495
Safety devices on farm equipment, ordinary negligence. 895.495(1)(a)
(a) "Farm equipment" means a tractor or other machine used in the business of farming.
895.495(1)(b)
(b) "Safety device" means a guard, shield or other part that has the purpose of preventing injury to humans.
895.495(2)
(2) If a person in the business of selling or repairing farm equipment fabricates a safety device and installs the safety device on used farm equipment, after determining either that the farm equipment was not originally equipped with such a safety device or that a replacement is not available from the original manufacturer or from a manufacturer of replacements, and notifies the owner or purchaser of the farm equipment that the person fabricated the safety device, the person is not liable for claims founded in tort for damages arising from the safety device unless the claimant proves, by a preponderance of the evidence, that a cause of the claimant's harm was the failure to use reasonable care with respect to the design, fabrication, inspection, condition or installation of, or warnings relating to, the safety device.
895.495 History
History: 1993 a. 455.
895.50
895.50
Right of privacy. 895.50(1)(1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:
895.50(1)(a)
(a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;
895.50(1)(b)
(b) Compensatory damages based either on plaintiff's loss or defendant's unjust enrichment; and
895.50(2)
(2) In this section, "invasion of privacy" means any of the following:
895.50(2)(a)
(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
895.50(2)(b)
(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
895.50(2)(c)
(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.
895.50(2)(d)
(d) Conduct that is prohibited under
s. 942.09, regardless of whether there has been a criminal action related to the conduct, and regardless of the outcome of the criminal action, if there has been a criminal action related to the conduct.
895.50(3)
(3) The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media.
895.50(4)
(4) Compensatory damages are not limited to damages for pecuniary loss, but shall not be presumed in the absence of proof.
895.50(6)(a)(a) If judgment is entered in favor of the defendant in an action for invasion of privacy, the court shall determine if the action was frivolous. If the court determines that the action was frivolous, it shall award the defendant reasonable fees and costs relating to the defense of the action.
895.50(6)(b)
(b) In order to find an action for invasion of privacy to be frivolous under
par. (a), the court must find either of the following:
895.50(6)(b)1.
1. The action was commenced in bad faith or for harassment purposes.
895.50(6)(b)2.
2. The action was devoid of arguable basis in law or equity.
895.50(7)
(7) No action for invasion of privacy may be maintained under this section if the claim is based on an act which is permissible under
ss. 196.63 or
968.27 to
968.37.
895.50 Annotation
Commercial misappropriation of a person's name is prohibited by Wisconsin common law. Hirsch v. S.C. Johnson & Son, Inc.
90 Wis. 2d 379,
280 N.W.2d 129 (1979).
895.50 Annotation
Oral communication among numerous employees and jail inmates is sufficient to constitute publicity under sub. (2) (c). Hillman v. Columbia County,
164 Wis. 2d 376,
474 N.W.2d 913 (Ct. App. 1991).
895.50 Annotation
Disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Whether a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of plaintiff's relationship to the audience who received the information. Pachowitz v. LeDoux, 2003 WI App 120,
265 Wis. 2d 631,
666 N.W.2d 88,
02-2100.
895.50 Annotation
An action for invasion of privacy requires : 1) a public disclosure of facts regarding the plaintiff: 2) the facts disclosed were private; 3) the private matter is one that would be highly offensive to a reasonable person of ordinary sensibilities, and 4) the party disclosing the facts acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter or with actual knowledge that none existed. In order to find public disclosure, the matter must be regarded as substantially certain to become one of public knowledge. Olson v. Red Cedar Clinic, 2004 WI App 102, ___ Wis. 2d ___,
681 N.W.2d 306,
03-2198.
895.50 Annotation
The right to privacy law, s. 895.50, does not affect the duties of custodians of public records under s. 19.21. 68 Atty. Gen. 68.
895.50 Annotation
Surveillance of a school district employee from public streets and highways by the employer school district's agents to determine whether the employee was in violation of the district's residency policy did not violate this section. Munson v. Milwaukee Board of School Directors,
969 F.2d 266 (1992).
895.50 Annotation
A person's religious affiliation, standing alone, is not so private that publication would offend a reasonable person and constitute an invasion of privacy under sub. (2) (c). Briggs & Stratton Corp. v. National Catholic Reporter Publishing Co.
978 F. Supp 1195 (1997).
895.50 Annotation
The exclusivity provision of the Workers Compensation Act does not bar a claim for invasion of privacy under s. 895.50. Marino v. Arandell Corp.
1 F. Supp. 2d 947 (1998).
895.50 Annotation
The absence of false light from the Wisconsin privacy statute. 66 MLR 99 (1982).
895.50 Annotation
The tort of misappropriation of name or likeness under Wisconsin's new privacy law. Endejan, 1978 WLR 1029.
895.50 Annotation
The Scope of Wisconsin's Privacy Statute. Backer. Wis. Law. Sept. 2003.
895.505
895.505
Disposal of records containing personal information. 895.505(1)(am)
(am) "Dispose" does not include a sale of a record or the transfer of a record for value.
895.505(1)(b)
(b) "Financial institution" means any bank, savings bank, savings and loan association or credit union that is authorized to do business under state or federal laws relating to financial institutions, any issuer of a credit card or any investment company.
895.505(1)(d)
(d) "Medical business" means any organization or enterprise operated for profit or not for profit, including a sole proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation, limited liability company or association, that possesses information, other than personnel records, relating to a person's physical or mental health, medical history or medical treatment.
895.505(1)(e)
(e) "Personal information" means any of the following:
895.505(1)(e)1.
1. Personally identifiable data about an individual's medical condition, if the data are not generally considered to be public knowledge.
895.505(1)(e)2.
2. Personally identifiable data that contain an individual's account or customer number, account balance, balance owing, credit balance or credit limit, if the data relate to an individual's account or transaction with a financial institution.
895.505(1)(e)3.
3. Personally identifiable data provided by an individual to a financial institution upon opening an account or applying for a loan or credit.
895.505(1)(e)4.
4. Personally identifiable data about an individual's federal, state or local tax returns.
895.505(1)(f)
(f) "Personally identifiable" means capable of being associated with a particular individual through one or more identifiers or other information or circumstances.
895.505(1)(g)
(g) "Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics.
895.505(1)(h)
(h) "Tax preparation business" means any organization or enterprise operated for profit, including a sole proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation, limited liability company or association, that for a fee prepares an individual's federal, state or local tax returns or counsels an individual regarding the individual's federal, state or local tax returns.
895.505(2)
(2) Disposal of records containing personal information. A financial institution, medical business or tax preparation business may not dispose of a record containing personal information unless the financial institution, medical business, tax preparation business or other person under contract with the financial institution, medical business or tax preparation business does any of the following:
895.505(2)(a)
(a) Shreds the record before the disposal of the record.
895.505(2)(b)
(b) Erases the personal information contained in the record before the disposal of the record.
