807.01 Annotation
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 (1999),
97-0686.
807.01 Annotation
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 (1999),
97-0686.
807.01 Annotation
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,
99-1319.
807.01 Annotation
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,
01-1091.
807.01 Annotation
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,
02-2100.
807.01 Annotation
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,
03-0245.
807.01 Annotation
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,
02-0359.
807.01 Annotation
“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,
03-2674.
807.01 Annotation
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,
04-1147.
807.01 Annotation
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,
05-1821.
807.01 Annotation
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,
05-3040.
807.01 Annotation
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,
08-0422.
807.01 Annotation
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,
08-0527.
807.01 Annotation
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,
08-0484.
807.01 Annotation
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,
09-2331.
807.01 Annotation
The right of a party making an offer of settlement to recover interest under sub. (4) accrues and becomes legally enforceable only after the recovery of a judgment. Therefore, awarding the statutory rate of interest in effect when the judgment was recovered, was not a retroactive application of sub. (4). The party that made the settlement offer did not have a vested right in the interest rate in effect at the time the offer was made. The party's right under former sub. (4) was inchoate, not perfected, not ripened, nor accrued. Lands' End, Inc. v. City of Dodgeville,
2016 WI 64,
370 Wis. 2d 500,
881 N.W.2d 702,
15-0179.
807.01 Annotation
The party who presents the offer must do so in clear and unambiguous terms. Any ambiguity in the offer is construed against the drafter. A settlement offer cannot be fully and fairly evaluated when not all of the terms are included in the offer. The offer in this case was ambiguous because it was based on the execution of a
Pierringer release that had yet to be drafted. It is not reasonable for a party receiving an offer to have to make assumptions as to the specific terms that the release will include. Wosinski v. Advance Cast Stone Co.
2017 WI App 51,
377 Wis. 2d 596,
901 N.W.2d 797,
14-1961.
807.01 Annotation
Subs. (3) and (4) may be utilized in diversity actions in federal courts. Dillingham-Healy v. Milwaukee Metropolitan Sewerage District,
796 F. Supp. 1191 (1992).
807.01 Annotation
The new Wisconsin rules of civil procedure: Chapters 805-807. Graczyk, 59 MLR 671.
807.01 Annotation
Offers of Judgment in Wisconsin Courts. Crinion. Wis. Law. Feb. 1991.
807.01 Annotation
Meeting Head On: Offers of Settlement and an Insurer's Potential Bad Faith. Warch. Wis. Law. Oct. 1996.
807.02
807.02
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.
807.02 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 742 (1975);
1977 c. 449; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
2001 a. 61.
807.02 Note
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]
807.03
807.03
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.
807.03 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 743 (1975).
807.04
807.04
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.
807.04(2)
(2) 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.
807.04 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 743 (1975);
1977 c. 187 s.
135;
1997 a. 133;
2001 a. 61.
807.05
807.05
Stipulations. 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 or
967.08 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.
807.05 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 744 (1975);
1975 c. 218; Sup. Ct. Order, 141 Wis. 2d xiii (1987).
807.05 Note
Comment, 2008: This section also applies to agreements, stipulations, and consents reached as a result of alternative dispute methods outlined in s. 802.12. In some cases, such as family law cases, court approval is required for an agreement to be effective.
807.05 NoteNote: Sup. Ct. Order No.
05-05,
2008 WI 2, states, “the comments to Wis. Stat. §§ 807.05 and 802.12 are not adopted but will be published and may be consulted for guidance in interpreting and applying the statutes."
807.05 Note
Judicial Council Note, 1988: The statute is amended to reflect that stipulations entered into at telephone conferences are no less binding than those made in writing or in court. [Re Order effective Jan. 1, 1988]
807.05 Annotation
When a stipulation did not satisfy this section, summary judgment was improper because there was no factual basis on the record for the decision. Wilharms v. Wilharms,
93 Wis. 2d 671,
287 N.W.2d 779 (1980).
807.05 Annotation
An oral agreement to settle an action that does not comply with this section is unenforceable. Adelmeyer v. Wisconsin Electric Power Co.
135 Wis. 2d 367,
400 N.W.2d 473 (Ct. App. 1986).
807.05 Annotation
This section does not affect procedural stipulations or judicial admissions that dispense with evidentiary requirements. State v. Aldazabal,
146 Wis. 2d 267,
430 N.W.2d 614 (Ct. App. 1988).
807.05 Annotation
The subscription requirement is met by a stamped facsimile signature. This provision does not require hand-written signatures. Kocinski v. Home Insurance Co.
154 Wis. 2d 56,
452 N.W.2d 360 (1990).
807.05 Annotation
Contract law is not binding in construing, enforcing, or modifying stipulations, but principles of contract law, including the uniform commercial code, may illuminate a stipulation dispute, even to the point of being dispositive. Phone Partners Ltd. v. C. F. Communications,
196 Wis. 2d 702,
512 N.W.2d 155 (Ct. App. 1995),
94-2279.
807.05 Annotation
To constitute a stipulation under this section, a statement must be conclusive on the question. The concession of a fact to the court made for strategic reasons and not agreed to by the other party is not a stipulation and the court need not engage in a colloquy with the parties about it. Fritz v. Fritz,
231 Wis. 2d 33,
605 N.W.2d 270 (Ct. App. 1999),
98-0605.
807.05 Annotation
This section does not provide for a party to subscribe to an agreement through general conduct. A party's assent or approval must be formalized in some way on the document itself. Laska v. Laska,
2002 WI App 132,
255 Wis. 2d 823,
646 N.W.2d 393,
02-0022.
807.05 Annotation
A fax transmittal letter sent by counsel that bore counsel's initials at the conclusion of the message text was subscribed within the meaning of this section thereby rendering the settlement terms accepted in that letter binding on the client and enforceable by the court. Waite v. Easton-White Creek Lions, Inc.
2006 WI App 19,
289 Wis. 2d 100,
709 N.W.2d 88,
05-1688.
807.05 Annotation
When an attorney signed a settlement agreement contingent on his client's consent by noon the following day and the client did not consent to the settlement by the deadline created by the contingency, the settlement was not enforceable under this section. Subsequent actions by the parties cannot fulfill the statutory requirements. Neither the untimely oral assurances by the attorney to the other parties, nor the attorney's call notifying the court that a settlement had been reached, satisfied the contingency set forth in the agreement. Affordable Erecting, Inc. v. Neosho Trompler, Inc.
2006 WI 67,
291 Wis. 2d 259,
715 N.W.2d 620,
04-2746.
807.05 AnnotationOral settlements are not invariably unenforceable. Gliniciki v. Borden, Inc.
444 F. Supp. 619.
807.06
807.06
Copy of paper may be used, when. 807.06(1)(1)
If any original paper or pleading be lost or withheld by any person the court may authorize a copy thereof to be filed and used instead of the original.
807.06(2)
(2) The clerk of circuit court may electronically scan any paper or pleading, as permitted under
SCR 72.05, and may discard the original paper or pleading pursuant to
SCR 72.03 (3). If the original is discarded, the electronically scanned document constitutes the official court record.
807.06 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 744 (1975); Sup. Ct. Order No.
12-05, 2012 WI 112, filed 11-1-12, eff. 1-1-13.
807.07
807.07
Irregularities and lack of jurisdiction over the parties waived on appeal; jurisdiction exercised; transfer to proper court. 807.07(1)(1)
When an appeal from any court, tribunal, officer or board is attempted to any court and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction over the parties of the appellate court, unless the respondent moves to dismiss such appeal before taking or participating in any other proceedings in said appellate court. If it appears upon the hearing of such motion that such appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.
807.07(2)
(2) If the tribunal from which an appeal is taken had no jurisdiction of the subject matter and the court to which the appeal is taken has such jurisdiction, the court shall, if it appears that the action or proceeding was commenced in the good faith and belief that the first named tribunal possessed jurisdiction, allow it to proceed as if originally commenced in the proper court and shall allow the pleadings and proceedings to be amended accordingly; and in all cases in every court where objection to its jurisdiction is sustained the cause shall be certified to some court having jurisdiction, provided it appears that the error arose from mistake.
807.07 History
History: Sup. Ct. Order, 67 Wis. 2d 744;
1975 c. 218; Sup. Ct. Order, 92 Wis. 2d xiii (1979).
807.07 Note
Judicial Council Committee's Note, 1979: Sub. (1) is amended to clarify that it addresses jurisdiction over the parties, and not the subject matter jurisdiction of the appellate court. Lack of subject matter jurisdiction of an appellate court cannot be waived. Sub. (1) cannot be used to cure defects concerning subject matter jurisdiction of an appellate court. [Re Order effective Jan. 1, 1980]
807.07 Annotation
This section does not confer jurisdiction on the court to hear an appeal in a criminal case when the appeal is not timely. Scheid v. State,
60 Wis. 2d 575,
211 N.W.2d 458 (1973).
807.07 Annotation
Sub. (2) applies only at the trial court level. It does not confer appellate jurisdiction on the supreme court when an appeal is first mistakenly taken to the circuit court. State v. Jakubowski,
61 Wis. 2d 220,
212 N.W.2d 155 (1973).
807.07 Annotation
Mere retention of an appellant's brief prior to making a motion to dismiss is not participation in the appeal and does not constitute a waiver of an objection to jurisdiction. Prior holdings to the contrary are overruled. State v. Van Duyse,
66 Wis. 2d 286,
224 N.W.2d 603 (1974).
807.07 Annotation
When a claimant timely appealed an adverse worker's compensation decision in good faith but erroneously captioned the appeal papers, the trial court abused its discretion by dismissing the action. Cruz v. DILHR,
81 Wis. 2d 442,
260 N.W.2d 692 (1978).
807.07 Annotation
Sub. (1) does not apply to petitions to appeal under s. 808.10. First Wisconsin National Bank of Madison v. Nicholaou,
87 Wis. 2d 360,
274 N.W.2d 704 (1979).
807.07 Annotation
The court of appeals erred in failing to exercise discretion under sub. (1) to permit an amendment of a notice of appeal. Northridge Bank v. Community Eye Care Center,
94 Wis. 2d 201,
287 N.W.2d 810 (1980).
807.07 Annotation
Sub. (2) permits transfer of a case when the action was originally filed in a court lacking subject matter jurisdiction or when the action was filed in a court of improper venue. Shopper Advertiser, Inc. v. DOR,
117 Wis. 2d 223,
344 N.W.2d 115 (1984),
81-1409.
807.07 Annotation
“Return" is a long-standing term of art that refers to the official record of the body whose decision is being reviewed and that must be filed with the reviewing court in a certiorari action. Because sub. (1) provides that “return" must be “duly made" before the respondent's participation in the action waives jurisdictional objections, when respondent's answer was filed before return was made to the circuit court, the answer did not waive its right to contest personal jurisdiction. Bergstrom v. Polk County,
2011 WI App 20,
331 Wis. 2d 678,
795 N.W.2d 482,
09-2572.
807.07 Annotation
The default remedy when a court lacks competency is dismissal under s. 802.06 (8). However, when the lack of competency derives from an improperly venued case, the court may transfer the case to a proper venue under sub. (2) so long as the error arose from a good faith error. DWD v. LIRC,
2016 WI App 21,
367 Wis. 2d 609,
877 N.W.2d 620,
14-2928.
807.08
807.08
Borrowing court files regulated. The clerk shall not permit any paper filed in the clerk's office to be taken therefrom unless upon written order of a judge of the court. The clerk shall take a written receipt for all papers so taken and preserve the same until such papers are returned. Papers so taken shall be returned at once upon request of the clerk or presiding judge, and no paper shall be kept longer than 10 days.
807.08 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 745 (1975);
1993 a. 486.
807.08 Annotation
Clerks of court may not send original records of criminal cases to the public defender prior to appeal unless a judge authorizes the release. 69 Atty. Gen. 63.
807.09(1)(1)
A circuit judge of the circuit court of any county may appoint and remove at any time, any retired or former circuit or county court judge to act, in matters referred by the judge and in conciliation matters. When a matter for conciliation is referred for such purpose, the conciliator shall have full authority to hear, determine and report findings to the court. Such conciliators may be appointed circuit court commissioners under
SCR 75.02 (1).
807.09(2)
(2) The circuit judges of such county shall make rules, not inconsistent with law, governing procedure before and pertaining to such conciliators and the county board shall fix and provide for their compensation.
807.09 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 746 (1975);
1975 c. 218;
1977 c. 187 s.
135;
1977 c. 323 s.
16;
2001 a. 61.
807.10
807.10
Settlements in behalf of minors or individuals adjudicated incompetent; judgments. 807.10(1)(1)
A compromise or settlement of an action or proceeding to which a minor or individual adjudicated incompetent is a party may be made by the guardian, if the guardian is represented by an attorney, or the guardian ad litem with the approval of the court in which such action or proceeding is pending.
807.10(2)
(2) A cause of action in favor of or against a minor or individual adjudicated incompetent may, without the commencement of an action thereon, be settled by the guardian, if the guardian is represented by an attorney, with the approval of the court appointing the guardian, or by the guardian ad litem with the approval of any court of record. An order approving a settlement or compromise under this subsection and directing the consummation thereof shall have the same force and effect as a judgment of the court.
807.10(3)
(3) If the amount awarded to a minor or individual adjudicated incompetent by judgment or by an order of the court approving a compromise settlement of a claim or cause of action of the minor or individual does not exceed the amount specified under s.
867.03 (1g) (intro.), exclusive of interest and costs and disbursements, and if there is no guardian of the ward, the court may upon application by the guardian ad litem after judgment, or in the order approving settlement, fix and allow the expenses of the action, including attorney fees and fees of guardian ad litem, authorize the payment of the total recovery to the clerk of the court, authorize and direct the guardian ad litem upon the payment to satisfy and discharge the judgment, or to execute releases to the parties entitled thereto, and enter into a stipulation dismissing the action upon its merits. The order shall also direct the clerk upon the payment to pay the costs, disbursements, and expenses of the action and to dispose of the balance in a manner provided in s.
54.12 (1), as selected by the court. The fee for the clerk's services for handling, depositing, and disbursing funds under this subsection is prescribed in s.
814.61 (12) (a).
807.10 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 746 (1975);
1975 c. 218;
1981 c. 317;
1997 a. 290;
1999 a. 32;
2005 a. 387.
807.10 Annotation
The quasi-judicial immunity of a guardian ad litem applies only to liability for the negligent performance of his or her duties, not as a shield against court-imposed sanctions for failure to obey a court order. Reed v. Luebke,
2003 WI App 207,
267 Wis. 2d 596,
671 N.W.2d 304,
02-2211.
807.10 Annotation
Whether an individual has satisfied the standard for mental incompetence under this section should be determined by considering the person's ability to: 1) reasonably understand pertinent information; 2) rationally evaluate litigation choices based upon that information; and 3) rationally communicate with, assist, and direct counsel. Kainz v. Ingles,
2007 WI App 118,
300 Wis. 2d 670,
731 N.W.2d 313,
06-0963.
807.10 Annotation
Because a claim was resolved when the plaintiff took judgment against the defendant's insurer, the requirement that settlements involving minors be approved by the court was not implicated. Parsons v. American Family Insurance Company,
2007 WI App 211,
305 Wis. 2d 630,
740 N.W.2d 399,
06-2481.
807.11
807.11
Orders: rendition and entry. 807.11(1)(1)
An order is rendered when it is signed by the judge.
807.11(2)
(2) An order is entered when it is filed in the office of the clerk of court.
807.11 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 747 (1975).
807.11 Annotation
An oral order of a state court that an injunction be issued was valid even though the case was removed to federal court before the order was signed. Heidel v. Voight,
456 F. Supp. 959 (1978).
807.12
807.12
Suing by fictitious name or as unknown; partners' names unknown. 807.12(1)(1)
When the name or a part of the name of any defendant, or when any proper party defendant to an action to establish or enforce, redeem from or discharge a lien or claim to property is unknown to the plaintiff, such defendant may be designated a defendant by so much of the name as is known, or by a fictitious name, or as an unknown heir, representative, owner or person as the case may require, adding such description as may reasonably indicate the person intended. But no person whose title to or interest in land appears of record or who is in actual occupancy of land shall be proceeded against as an unknown owner.
807.12(2)
(2) When the name of such defendant is ascertained the process, pleadings and all proceedings may be amended by an order directing the insertion of the true name instead of the designation employed.
