949.05
949.05
Award; to whom payable. 949.05(1)
(1) In any case in which a person is injured or killed by an incident specified in
s. 949.03 (1) (a), by any act or omission of any other person that is within the description of crimes under
s. 949.03 (1) (b) or by any act or omission of any person that is within the description of the crime listed and the condition provided under
s. 949.03 (1) (c), the department may order the payment of an award:
949.05(1)(a)
(a) To or for the benefit of the injured person;
949.05(1)(b)
(b) In the case of personal injury to or death of the victim, to any person responsible for the maintenance of the victim who has suffered pecuniary loss or incurred expenses as a result of the injury to or death; or
949.05(1)(c)
(c) Except as provided in
s. 949.06 (1m), in the case of death of the victim, to or for the benefit of any one or more of the dependents of the victim. If 2 or more dependents are entitled to an award, the award shall be apportioned by the department among the dependents.
949.06
949.06
Computation of award. 949.06(1)
(1) In accordance with this subchapter, the department shall make awards, as appropriate, for any of the following economic losses incurred as a direct result of an injury:
949.06(1)(b)
(b) Work loss, which shall be determined as follows:
949.06(1)(b)1.
1. If the victim was employed at the time of the injury, loss of actual earnings shall be based upon the victim's net salary at the time of the injury.
949.06(1)(b)2.
2. If the victim was not employed at the time of the injury or, if as a direct result of the injury, the victim suffered a disability causing a loss of potential earnings, the award may be based upon a sufficient showing by the victim that he or she actually incurred loss of earnings. The amount of the award shall be reduced by any income from substitute work actually performed by the victim or by income the victim would have earned in available appropriate substitute work the victim was capable of performing, but unreasonably failed to undertake.
949.06(1)(bm)
(bm) If the victim is a homemaker, an amount sufficient to ensure that the duties and responsibilities are continued until the victim is able to resume the performance of the duties, or until the cost of services reaches the maximum allowable under
sub. (2), whichever is less.
949.06(1)(c)
(c) Reasonable replacement value of any clothing and bedding that is held for evidentiary purposes, but not to exceed $300.
949.06(1)(cm)
(cm) Reasonable replacement value for property, other than clothing and bedding under
par. (c), that is held for evidentiary purposes and is rendered unusable as a result of crime laboratory testing, but not to exceed $200.
949.06(1)(d)
(d) Reasonable funeral and burial expenses, not to exceed $2,000. The funeral and burial award may not be considered by the department under
sub. (2).
949.06(1)(e)
(e) Dependent's economic loss, which shall include contributions of things of economic value provided by the victim to dependents but lost as a result of the victim's death. Loss of support shall be determined on the basis of the victim's net salary at the time of death, and shall be calculated as an amount equal to 4 times the victim's average annual earnings.
949.06(1)(f)
(f) Reasonable and necessary costs associated with securing and cleaning up a crime scene, not to exceed $1,000.
949.06(1m)(a)(a) In this subsection, "family member" means any spouse, domestic partner under
ch. 770, parent, grandparent, stepparent, child, stepchild, adopted child, grandchild, foster child, treatment foster child, brother, sister, half brother, half sister, aunt, uncle, nephew, niece, or parent or sibling of spouse or of domestic partner under
ch. 770.
Effective date note
NOTE: Par. (a) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(a) In this subsection, "family member" means any spouse, domestic partner under ch. 770, parent, grandparent, stepparent, child, stepchild, adopted child, grandchild, foster child, brother, sister, half brother, half sister, aunt, uncle, nephew, niece, or parent or sibling of spouse or of a domestic partner under ch. 770.
949.06(1m)(b)
(b) In accordance with this subchapter, the department shall make awards, as appropriate, to persons who, immediately prior to the crime, lived in the same household with and to family members of a victim of
s. 940.01,
940.02,
940.05,
940.06,
940.07,
940.08 or
940.09 for any of the economic losses specified in
sub. (1) as a result of the person's or family member's reaction to the death. A dependent may recover both under
sub. (1) and this subsection, subject to the limitation under
sub. (2).
949.06(2)
(2) The department may not make an award of more than $40,000 for any one injury or death.
949.06(3)
(3) Any award made under this section shall be reduced by the amount of any payment received, or to be received, as a result of the injury or death:
949.06(3)(a)
(a) From, or on behalf of, the person who committed the crime.
949.06(3)(b)
(b) From insurance payments or program, including worker's compensation and unemployment insurance.
949.06(3)(e)
(e) From one or more 3rd parties held liable for the offender's acts.
949.06(4)(a)(a) An award may be made whether or not any person is prosecuted or convicted of any offense arising out of such act or omission.
949.06(4)(b)
(b) The department may suspend proceedings under this subchapter for a period it deems appropriate on the grounds that a prosecution for an offense arising out of the act or omission has been commenced or is imminent.
949.06 Cross-reference
Cross-reference: See also ch.
Jus 11, Wis. adm. code.
949.07
949.07
Manner of payment. The award, combining both the compensation award and the funeral and burial award, if applicable, shall be paid in a lump sum, except that in the case of death or protracted disability the award may provide for periodic payments. The department may pay any portion of an award directly to the provider of any service which is the basis for that portion of the award. No award may be subject to execution, attachment, garnishment or other process, except that an award for allowable expense is not exempt from a claim of a creditor to the extent that the creditor provided products, services or accommodations the costs of which are included in the award.
949.08
949.08
Limitations on awards. 949.08(1)
(1) No order for the payment of an award may be made unless the application was made within 1 year after the date of the personal injury or death, and the personal injury or death was the result of an incident or offense which had been reported to the police within 5 days of its occurrence or, if the incident or offense could not reasonably have been reported within such period, within 5 days of the time when a report could reasonably have been made. The department may waive the one-year requirement under this subsection in the interest of justice.
949.08(2)
(2) No award may be ordered if the victim:
949.08(2)(a)
(a) Engaged in conduct which substantially contributed to the infliction of the victim's injury or death or in which the victim could have reasonably foreseen could lead to the injury or death. This does not apply to awards to victims under
s. 949.03 (1) (a).
949.08(2)(b)
(b) Committed a crime which caused or contributed to the victim's injury or death.
949.08(2)(d)
(d) Has not cooperated with appropriate law enforcement agencies.
949.08(2)(e)
(e) Is an adult passenger in the offender's vehicle, the crime involved is specified in
s. 346.63 (2) or
940.25, and the passenger knew the offender was committing that offense. This paragraph does not apply if the victim is also a victim of a crime specified in
s. 940.30,
940.305,
940.31 or
948.30.
949.08(2)(em)
(em) Is an adult passenger in the offender's commercial motor vehicle, the crime involved is specified in
s. 346.63 (6) or
940.25, and the passenger knew the offender was committing that offense. This paragraph does not apply if the victim is also a victim of a crime specified in
s. 940.30,
940.305,
940.31, or
948.30.
949.08(2)(f)
(f) Has not cooperated with the department in the administration of the program.
949.08(2)(g)
(g) Is included on the statewide support lien docket under
s. 49.854 (2) (b), unless the victim provides to the department a payment agreement that has been approved by the county child support agency under
s. 59.53 (5) and that is consistent with rules promulgated under
s. 49.858 (2) (a).
949.08(2m)
(2m) If a claimant other than a victim has not cooperated with the department in the administration of the program, no award may be ordered for the claimant.
949.08(3)
(3) No award may be made to any claimant if the award would unjustly benefit the offender or accomplice.
949.09
949.09
Effect of conviction. If any person has been convicted of any offense with respect to an act or omission on which a claim under this subchapter is based, proof of that conviction shall be taken as conclusive evidence that the offense has been committed, unless an appeal or any proceeding with regard thereto is pending.
949.09 History
History: 1975 c. 344;
2007 a. 20.
949.10
949.10
Emergency awards. 949.10(1)(1) Notwithstanding
s. 949.06, if the department determines that an award will probably be made and that undue hardship will result to the claimant if immediate payment is not made, the department may order emergency awards as follows:
949.10(1)(a)
(a) An emergency compensation award may not exceed $500.
949.10(1)(b)
(b) An emergency award for funeral and burial expenses may not exceed $2,000.
949.10(2)
(2) Any award under
sub. (1) shall be deducted from the final award made to the claimant. The excess of the amount of such emergency award over the amount of the final award, or the full amount of the emergency award if no final award is made, shall be repaid by the claimant to the department.
949.10 History
History: 1975 c. 344;
1981 c. 20.
949.11(1)(1) The procedure of
ch. 227 for contested cases applies to hearings under this subchapter except as otherwise provided in this section and
ss. 949.12 and
949.14.
949.11(2)
(2) The division of hearings and appeals in the department of administration shall appoint hearing examiners to make findings and orders under
s. 227.46 and this subchapter.
949.11(3)
(3) All hearings shall be open to the public unless in a particular case the examiner determines that the hearing, or a portion thereof, shall be held in private having regard to the fact that the offender has not been convicted or to the interest of the victim of an alleged sexual offense.
949.115
949.115
Subpoenas. The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this subchapter and may enforce compliance with such subpoenas as provided in
s. 885.12.
949.115 History
History: 1981 c. 20;
2007 a. 20.
949.12
949.12
Condition of claimant. There is no privilege, except privileges arising from the attorney-client relationship, as to communications or records relevant to an issue of the physical, mental or emotional condition of the claimant or victim in a proceeding under this subchapter in which that condition is an element.
949.13
949.13
Agency cooperation. Upon request by the department, any state or local agency, including a district attorney or law enforcement agency, shall make available all reports, files and other appropriate information which the department requests in order to make a determination that a person is eligible for an award under this subchapter.
949.14(1)(1) The department may determine and allow reasonable attorney fees to be paid out of, but not in addition to, the amount of the award granted to a claimant. No attorney may ask for, contract for or receive any larger sum than the amount so allowed. Attorney fees shall not exceed 10% of the amount the attorney assisted the victim in obtaining.
949.14(2)
(2) The department shall provide for payment of such fee directly to the person entitled thereto.
949.14(3)
(3) Whoever charges a fee in violation of
sub. (1) shall forfeit double the amount retained by the attorney. This forfeiture shall be collected by this state in an action in debt, upon complaint of the department. Out of the sum recovered, the court shall direct payment to a claimant in the amount of the overcharge.
949.15
949.15
Department subrogation rights. 949.15(1)
(1) Whenever the department orders the payment of an award under this subchapter as a result of the occurrence of an event that creates a cause of action on the part of a claimant against any person, the department is subrogated to the rights of the claimant and may bring an action against the person for the amount of the damages sustained by the claimant. If an amount greater than that paid under the award order is recovered and collected in any such action, the department shall pay the balance to the claimant. If the person responsible for the injury or death has previously made restitution payments to the general fund under
s. 973.20, any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.
949.15(2)
(2) In addition to the authority of the department to bring an action under
sub. (1), the claimant may bring an action to recover damages. In any such action, the department has subrogation rights under
sub. (1) and the claimant shall join the department as a party under
s. 803.03 (2) (a). After joinder, the department has the options specified in
s. 803.03 (2) (b).
949.15(3)
(3) If a judgment or verdict in an action under
sub. (1) or
(2) indicates separately economic loss and noneconomic detriment, payments on the judgment shall be allocated between them in proportion to the amounts indicated. In such an action, the judge, on timely motion, shall direct the jury to return a special verdict, indicating separately the awards for noneconomic detriment, punitive damages and economic loss.
949.15 Annotation
Election of remedies, retroactivity, joinder, statute of limitations, and subrogation are discussed. Bruner v. Kops,
105 Wis. 2d 614,
314 N.W.2d 892 (Ct. App. 1981).
949.15 Annotation
Although a county was vicariously liable for damages due to injury, it was not a "person responsible for the injury." As such, no subrogation was required. Hamed v. Milwaukee County,
108 Wis. 2d 257,
321 N.W.2d 199 (1982).
949.15 Annotation
The Department of Justice, Crime Victim Compensation Program is not an entity that is separate and distinct from the state. The program is an arm of the state and is considered stateless for diversity purposes under federal law. Bosse v. Pitts,
455 F. Supp. 868 (2006).
949.16
949.16
Confidentiality of records. The record of a proceeding before an examiner or the department under this subchapter is a public record. Any record or report obtained by an examiner or the department, the confidentiality of which is protected by any other law or rule, shall remain confidential.
949.165
949.165
Escrow accounts; moneys received as a result of the commission of a serious crime. 949.165(1)(a)
(a) "Serious crime" has the meaning designated in
s. 969.08 (10) (b) and includes solicitation, conspiracy or attempt to commit a serious crime.
