Section 11.13. Recovery.

 

(1)   Department subrogation. Whenever an order for the payment of an award for personal injury or death is or has been made under this subchapter, the department is subrogated to the cause of action of the claimant against the person responsible for the injury or death and may bring an action against the person for the amount of the damages sustained by the claimant. The department is also subrogated to the cause of action of the claimant against one or more 3rd parties liable for the acts of the person responsible for the injury or death. 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 , Stats., any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.

(2)   Claimant action. 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 this section and the claimant shall join the department as a party under s. 803.03 (2) (a) , Stats. After joinder, the department has the options specified in s. 803.03 (2) (b) , Stats.

(3)   Judgment allocated. 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.

(4)   Civil action not necessary. In order to receive compensation under ch. 949 , Stats. , it is not necessary that an applicant first bring an action against the offender. If such an action is brought, and the applicant is successful, the proceeds of the action are subject to the provisions of this subchapter. The department shall notify the claimant of the requirements of this paragraph at the time the department makes an award to the claimant.

(5)   Applicant responsibility. If a claimant receives from any source or third party any payment for damages, injuries or economic loss for which the applicant has been previously compensated under ch. 949 , Stats. , and this subchapter the applicant shall:

(a) Immediately notify the department.

(b) Within 30 days, reimburse the department, to the extent of the payment received, the amount previously awarded the applicant under ch. 949 , Stats.

(6)   Department responsibility. The department shall notify a claimant of the requirements under sub. (5) .

History: Cr. Register, February, 1992, No. 434 , eff. 3-1-92; CR 15-058 : am. (1), (4), (5) (intro.) Register May 2016 No. 725 , eff. 6-1-16.