Section 11.05. Awards.

 

(1)   To whom payable. The department may make an award for economic loss to or for the benefit of any of the following persons:

(a) A victim.

(b) A dependent.

(c) A third person other than a collateral source, who is responsible for the maintenance of the victim and who has incurred an expense as a direct result of the victim's personal injury or death.

(d) A family member or person who lived with the victim immediately prior to the crime, as a result of the person's or family member's reaction to the death. In this subsection:

1. The victim must be a victim of s. 940.01 , 940.02 , 940.05 , 940.06 , 940.07 , 940.08 or 940.09 , Stats.

2. A dependent may recover both under s. 949.06 (1) , Stats., and this subsection subject to the limitations of s. 949.08 (1m) (a) , Stats.

(2)   Maximum award. An award shall not exceed the economic loss to the claimant or exceed the limitations of s. 949.08 (1m) (a) , Stats., plus the reasonable funeral and burial expenses under s. Jus 11.04 (6) , whichever is less.

(3)   Dependents' economic loss. In determining the amount of the award, the department shall:

(a) Determine loss of support based on the victim's net salary at the time of death and loss of support shall be calculated equal to four times the victim's annual net salary. The department shall determine if the dependents have received or will receive proceeds from private or public insurance plans. Public insurance plans include social security benefits. The proceeds from a private or public insurance plan shall be prorated over the life expectancy of the victim and the amount of the first four years shall be deducted from the amount of the lost salary.

(b) Calculate dependent's economic loss by determining a loss reasonably incurred after the victim's death in obtaining services in lieu of those the victim would have performed for the dependent's benefit had the victim not suffered a fatal injury. The cost of the services shall be actual, reasonable and necessary. The department may make an award on a periodic basis as the cost of lost service is incurred. The department shall periodically review the amount of the award to determine the dependent's continued right to the award.

(4)   Collateral sources.

(a) Any award made under this subchapter shall be reduced by the amount of any payment received, or to be received, as a result of the injury or death:

1. From, or on behalf of, the person who committed the crime.

2. From insurance payments or programs, including workers compensation, unemployment compensation and social security.

3. From public funds.

4. As an emergency award under s. 949.10 , Stats.

5. From one or more 3rd parties held liable for the victim's injury or death.

(b) If the claimant fails to take advantage of a source of benefits that would have been available to the claimant or that would have reimbursed the claimant for all or a portion of an economic loss, the department shall reduce or deny an award to the extent that it would have been paid by such source of benefits. The department may waive this requirement in the interest of justice.

(5)   Awards to minor dependents. The department may award benefits to the parent of a minor dependent child, the child's guardian or to such person, or trustee, for the minor dependent child's use as may be found to be best calculated to serve the interest of the child or for the support and maintenance of a minor dependent child or children.

(6)   Awards to providers. 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.

(7)   Awards not subject to attachment. No award made under this subchapter may be subject to execution, attachment, garnishment or other process, except that an award for economic loss 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.

(8)   Actual loss. The department may not make an award when the department determines in a particular case that the claimant would not ordinarily have been required to pay for the services but for ch. 949 , Stats.

(9)   Dependents. If 2 or more dependents are entitled to the award as a result of the death of a victim, the department shall apportion the award among the dependents. The department may apportion the award among the dependents in equal amounts.

(10)   Probate award. The department may apportion an award for a victim's economic loss in a manner which the department determines to be just or in the best interest of the applicant.

(11)   Periodic awards. In the case of the death of the victim or in the case of a protracted loss of earnings, the department may make periodic awards. The department shall periodically verify whether the claimant is entitled to continue to receive such payments.

History: Cr. Register, February, 1992, No. 434 , eff. 3-1-92; CR 15-058 : am. (4) (a) (intro.), (7) Register May 2016 No. 725 , eff. 6-1-16; correction in (6) made under s. 13.92 (4) (b) 7. , Stats., Register May 2016 No. 725 .

Note

Section 949.10, Stats., was repealed by 2015 Wis. Act 350 . Microsoft Windows NT 6.1.7601 Service Pack 1