Legislative Update: 2023-24 Session Concludes with Few Changes to Civil Justice Policy
Adam Jordahl, The Hamilton Consulting Group, LLC

On behalf of WDC, the Hamilton Consulting Group monitors developments affecting civil litigation, insurance law, and worker’s compensation policy in Wisconsin, including Legislative opportunities and threats impacting Wisconsin’s civil litigation environment; Rule petitions to the Wisconsin Supreme Court affecting civil trial and appellate practice; and Case law from precedential opinions issued by the state’s supreme and appellate courts.[1] The Hamilton Consulting team is available to serve WDC and its members and can be contacted at [email protected].

I.              Introduction

At the time of writing in late February, the Wisconsin Legislature was nearing the end of the 2023-24 legislative session. Key political and policy issues that occupied lawmakers this session included redistricting, tax reform, local government funding, workforce development, alcohol regulation, childcare, and abortion. Very few proposals affecting civil litigation, whether positive or negative for civil defense practitioners, were poised to become law this session. 

II.            Limiting Noneconomic Damages 

WDC has registered in support of legislation, Senate Bill 613, that would cap the recovery of noneconomic damages from trucking companies and commercial drivers.[2] Authored by Sen. Cory Tomczyk (R-Mosinee) and Reps. John Spiros (R-Marshfield) and Rick Gundrum (R-Slinger), the aim of the bill is to protect employers from unreasonable “nuclear verdicts” and stabilize insurance costs for the trucking industry.[3]

The legislation sets a per-victim limit (not a per-accident or per-incident limit) of $1 million in noneconomic damages that can be recovered from a commercial motor vehicle carrier for injury, death, or other loss caused by an employee of the carrier while acting within the scope of employment. 

Over time, trucking has become progressively safer, yet trucking-related litigation costs and verdicts have risen rapidly, out of sync with the facts on the ground. This raises costs for anyone who buys or sells a product shipped by truck. The large truck fatal crash rate in America fell by 34 percent between 2000 and 2020, and research suggests that 70 percent of fatal crashes involving a truck were the sole fault of passenger vehicle drivers.[4]

Meanwhile, a study of civil verdicts over $1 million, conducted by the American Transportation Research Institute, found a 967 percent increase in the average size of verdicts in the trucking industry between 2010 and 2018. This increase is not due to overall inflation or healthcare cost inflation, which increased at much lower rates of 16 percent and 26 percent, respectively.[5]

SB 613 cleared both houses of the Wisconsin Legislature on February 20, 2024. First, the Senate voted 21-11 to pass the bill, with one Republican joining all Democrats present in opposing the bill.[6] The Assembly concurred in the bill by voice vote later that day. 

Given the partisan nature of the Senate vote, and opposition from the plaintiff’s bar, it seems likely that Gov. Tony Evers (D) will veto this reform, despite broad support for the legislation among Wisconsin’s business community.[7] 

III.          De-Icer Certification and Liability Protection 

Senate Bill 52, authored by Sen. Andre Jacque (R-De Pere) and Rep. Elijah Behnke (R-Oconto), creates a voluntary training and registration program for commercial applicators of products for snow and ice removal.[8] The program, which would be managed by the Department of Agriculture, Trade, and Consumer Protection, is intended to encourage applicators to use ice and snow removal procedures that also protect water quality, in part by reducing salt use.

For registered applicators and the businesses and individual property owners that hire them, the bill provides protection from civil liability for a hazard related to snow and ice accumulation. This liability exemption would apply provided that the registered applicator used approved treatment methods and did not commit a reckless, wanton, or intentional act or omission. 

The Wisconsin Civil Justice Council successfully worked with the bill authors, legislative committees, and other stakeholders to draft strong, sensible liability protection language to incentivize applicators and business owners to take advantage of this program. WDC provided significant input during the drafting process and negotiations.

On January 16, 2024, the Senate voted 17-15 to pass the bill, with only Republicans voting in favor.[9] Five Republicans joined all Democrats present in opposing the bill. The Senate adopted a substitute amendment[10] to update the language of the bill and rejected another amendment[11] that would have watered down the lability language and left property owners and commercial applicators vulnerable to tenuous claims. On February 22, 2024, the Assembly concurred in the bill by voice vote.[12] 

The legislation is supported by a mixture of business and environmental groups but opposed by the plaintiff’s bar.[13] Given the partisan nature of the votes in the Legislature and the opposition from plaintiff’s attorneys, a veto from Gov. Evers appears to be the most likely outcome for this bill.

IV.          Regulation of Nonrecourse Civil Litigation Advances 

Legislation to create consumer protections for nonrecourse civil litigation advances (colloquially known as “consumer lawsuit lending”) was reintroduced this session.[14] It was authored by Sen. Eric Wimberger (R-Green Bay) and Rep. Ron Tusler (R-Harrison).

A nonrecourse civil litigation advance is one way that some financiers invest in lawsuits. It is a form of payment advance provided to a plaintiff in a lawsuit, with repayment conditioned on and derived from the plaintiff’s recovery, if any. These transactions are currently unregulated in Wisconsin. The goal of this reform is to protect consumers and control litigation costs by limiting the total finance charge and requiring financiers to clearly disclose the terms of these agreements and provide certain consumer protections in their contracts.[15]

This legislation received public hearings in both houses of the Legislature and a positive committee vote in the Senate. WDC registered in support of this legislation, which was developed by the Wisconsin Civil Justice Council with broad support from the state’s business community.[16] Ultimately, the bill was not scheduled for a floor vote in either house by the end of the session.

As expected, a representative of the consumer legal finance industry testified against the bill at the public hearings. He said that the firms he represents oppose a cap on the total finance charge but generally support the bill’s other regulatory provisions to address “bad actors” in the industry.

V.            Other Legislation 

In addition to the bills discussed in detail in this article, a variety of bills proposing new private causes of action were introduced this session. Very few of these bills advanced beyond the committee stage in the legislative process, and none of them were expected to become law this year. A notable and concerning trend for civil defense and insurance attorneys and the state’s business community is an increasing willingness among legislators of both parties to propose new civil causes of action as a way of advancing policy goals that could otherwise be accomplished by regulatory or other means.

VI.          Conclusion

On behalf of WDC, the Hamilton Consulting Group monitors developments affecting civil litigation and insurance law in Wisconsin, including:

• Legislative opportunities and threats impacting Wisconsin’s civil litigation environment.
• Rule petitions to the Wisconsin Supreme Court affecting civil trial and appellate practice.
• Case law from precedential opinions issued by the state’s supreme and appellate courts.^[17]

The Hamilton Consulting team is available to serve WDC and its members. If you have any questions about legislative or policy matters, please contact the author at [email protected].

Author Biography:

Adam Jordahl is the Communications & Government Relations Manager for the Hamilton Consulting Group, a full-service government affairs firm located in Madison. On behalf of the firm and its clients, including Wisconsin Defense Counsel, he monitors legislation, rules, and public meetings, researches policy issues, and produces publications, client reports, and member communications. Adam earned a B.A. from Rice University, graduating cum laude with distinction for his senior thesis on internet memes and political messaging.