Wis. Stat. » CHAPTER 895 — DAMAGES, LIABILITY, AND MISCELLANEOUS PROVISIONS

Wis. Stat. § 895.446

Property damage or loss caused by crime; action for

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895.446895.446 Property damage or loss caused by crime; action for.
895.446(1)(1) Any person who suffers damage or loss by reason of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under s. 943.201 or 943.203, or by reason of intentional conduct that occurs on or after July 1, 2004, and that is prohibited under s. 943.011, 943.012, or 943.017, has a cause of action against the person who caused the damage or loss.
895.446(2)(2) The burden of proof in a civil action under sub. (1) is with the person who suffers damage or loss to prove a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76 by a preponderance of the credible evidence. A conviction under s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76 is not required to bring an action, obtain a judgment, or collect on that judgment under this section.
895.446(3)(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:
895.446(3)(a)(a) Actual damages, including the retail or replacement value of damaged, used, or lost property, whichever is greater, for a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76.
895.446(3)(b)(b) All costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.
895.446(3)(c)(c) Exemplary damages of not more than 3 times the amount awarded under par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph.
895.446(3m)(3m) 
895.446(3m)(a)(a) In this subsection, “plant” includes the material taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.
895.446(3m)(b)(b) If the violation of s. 943.01 (1) involves the circumstances under s. 943.01 (2d), the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action and, when determining the damages recoverable under sub. (3), shall include the market value of the plant before the damage or destruction, and the costs of production, research, testing, replacement, and plant development directly related to the plant that has been damaged or destroyed.
895.446(4)(4) Any recovery under this section shall be reduced by the amount recovered as restitution under ss. 800.093 and 973.20 and ch. 938 for the same act or as recompense under s. 969.13 (5) (a) for the same act.
895.446(5)(5) No person may bring a cause of action under both this section and s. 95.195, 895.449, 943.212, 943.245 or 943.51 regarding the same incident or occurrence. If the plaintiff has a cause of action under both this section and s. 895.449, 943.212, 943.245 or 943.51 regarding the same incident or occurrence, the plaintiff may choose which action to bring. If the plaintiff has a cause of action under both this section and s. 95.195, the plaintiff must bring the action under s. 95.195.
895.446(6)(6) A person is not criminally liable under s. 943.30 for any action brought in good faith under this section.
895.446 HistoryHistory: 1995 a. 27; 1997 a. 101; 2001 a. 16, 91; 2003 a. 36, 138; 2005 a. 155 s. 70; Stats. 2005 s. 895.446; 2005 a. 447 s. 1; 2007 a. 96; 2011 a. 186.
895.446 AnnotationCivil theft under this section is an “other civil action” under s. 799.01 (1) (d), not an “action based in tort” under s. 799.01 (1) (cr). The use of the term “civil action” in this section to describe the cause for civil theft indicates that the cause may also be properly characterized as a “civil action” under s. 799.01. This statutory civil theft claim has been specifically distinguished from similar claims of conversion, which sound in tort. Estate of Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.
895.446 AnnotationAttorney fees are included within the meaning of “costs of investigation and litigation” under sub. (3) (b) because Stathus, 2003 WI App 28, has long stood for that proposition and the legislature, despite taking other, subsequent action in this section, has not legislated so as to alter that interpretation. Estate of Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.
895.446 AnnotationCurrent or continuing possession of property is not an element of a claim under this section and is not a requirement under general standing principles. Pagoudis v. Keidl, 2023 WI 27, 406 Wis. 2d 542, 988 N.W.2d 606, 20-0225.
895.446 AnnotationBoth conversion and civil theft under sub. (1) and s. 943.20 (1) (b) require the victim to have an ownership interest in the property converted or stolen. Under the agreement in this case, the plaintiff operated a brain injury center in the defendant’s nursing facility; the defendant handled all billing and collections for the services the plaintiff provided; and, through a process outlined in the agreement, the defendant remitted the funds collected to the plaintiff. However, the defendant failed to follow through on its obligations under the contract, redirecting the plaintiff’s funds to pay the defendant’s employees and other creditors instead. When one party receives funds from an outside source and is required to remit those funds to the other party, that is enough to create an ownership interest. Milwaukee Center for Independence, Inc. v. Milwaukee Health Care, LLC, 929 F.3d 489 (2019).
895.446 AnnotationUnder Wisconsin law, the economic loss doctrine does not bar recovery under s. 100.18, but it does bar recovery under s. 895.80 [now this section], at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005).
Notes of Decisions
Cited in 116 cases (69 in the last 5 years), 2006–2026 · leading case: Estate of Stanley G. Miller v. Diane Storey
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Estate of Stanley G. Miller v. Diane Storey (2017) wis · cites it 327× “2014AP2420 ¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)2 for theft of money from her elderly uncle when she cared for him in the last year of his life.”
Estate of Miller v. Storey (2016) wisctapp · cites it 65× “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
Below v. Norton (2008) wis · cites it 24× “¶ 7 We note that the issue of whether the ELD bars claims under Wis. Stat. § 895.446 [5] (formerly Wis. Stat.”
CoVantage Credit Union v. Stangel (In re Stangel) (2018) wieb · cites it 26× “That is the amount of actual damages supported by the record, and on which the Court will base the judgment. The Court will not speculate about what the additional $5.”
Ferris v. Location 3 Corp. (2011) wisctapp · cites it 19× “question, "[a]re you aware of any other conditions or occurrences which would significantly increase the cost of development or reduce the value of the Property to a reasonable person with knowledge of the nature and scope of the condition or occurrence?" Pertinent to this…”
Malzewski v. Rapkin (2006) wisctapp · cites it 9× “§ 895.446 effective April 5, 2006), which provides a civil remedy for the violation of WIS.”
Louis Pagoudis v. Marcus Keidl (2023) wis · cites it 5× “¶85 Furthermore, as I explained above, such claims generally are assignable, but the Amended Complaint does not allege that they were assigned to either Sead or Kearns and therefore, they likely remain with Pagoudis.”
Gable v. Universal Acceptance Corp. (2018) wied · cites it 8× “Gable and Castner assert claims two through five against all defendants, but they allege that only RPI and Chase violated the FDCPA and that only Chase effected a false imprisonment.”
Hellenbrand Glass, LLC v. Pulvermacher (In re Pulvermacher) (2017) wiwb · cites it 5× “03 is nondischargeable under section 523(a)(4), They also stipulated that the state court trebled this amount pursuant to Wis. Stat. §§ 895.446 and 943.20, and awarded attorneys’ fees and other costs of investigation and the investigation costs reasonably incurred to collect on…”
Maya Elaine Smith v. Jeff Anderson (2017) wis · cites it 4× “• Misrepresentation (Violation of Wis. Stat. §§ 895.446 51 and 943.20(1)(d)).”
J. Steven Tikalsky v. Susan Friedman (2019) wis · cites it 3× “§§ 895.446 (2015-16)6 and 943.20; (6) unjust enrichment; (7) civil conspiracy; (8) punitive damages; and (9) constructive trust.”
Louis Pagoudis v. Marcus Keidl (2021) wisctapp · cites it 6× “Sead Has Standing to Pursue Claims to the Extent It Can Show That It Suffered Legally Compensable Harm ¶21 As relevant to this appeal, the amended complaint alleges four claims: (1) breach of contract based on breach of express warranty; (2) false advertising 11 No.”
Show all 116 citing cases →
— Wis. Stat. § 895.446(1) — 18 cases
Louis Pagoudis v. Marcus Keidl (2023) wis “¶85 Furthermore, as I explained above, such claims generally are assignable, but the Amended Complaint does not allege that they were assigned to either Sead or Kearns and therefore, they likely remain with Pagoudis.”
Maya Elaine Smith v. Jeff Anderson (2017) wis “• Misrepresentation (Violation of Wis. Stat. §§ 895.446 51 and 943.20(1)(d)).”
Kolbe & Kolbe Millwork, Co. v. Manson Insurance Agency, Inc. (2013) wiwd
Louis Pagoudis v. Marcus Keidl (2021) wisctapp “Sead Has Standing to Pursue Claims to the Extent It Can Show That It Suffered Legally Compensable Harm ¶21 As relevant to this appeal, the amended complaint alleges four claims: (1) breach of contract based on breach of express warranty; (2) false advertising 11 No.”
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
— Wis. Stat. § 895.446(2) — 2 cases
Estate of Stanley G. Miller v. Diane Storey (2017) wis “2014AP2420 ¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)2 for theft of money from her elderly uncle when she cared for him in the last year of his life.”
John M. Schuepbach v. Leistikow Properties, LLC (2020) wisctapp
— Wis. Stat. § 895.446(3) — 10 cases
Estate of Stanley G. Miller v. Diane Storey (2017) wis “2014AP2420 ¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)2 for theft of money from her elderly uncle when she cared for him in the last year of his life.”
CoVantage Credit Union v. Stangel (In re Stangel) (2018) wieb “That is the amount of actual damages supported by the record, and on which the Court will base the judgment. The Court will not speculate about what the additional $5.”
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
Thunderbird Engineering, Inc. v. American Design, Inc. (2023) wisctapp
Christopher Hookstead v. Gary Beal (2021) wisctapp
— Wis. Stat. § 895.446(3)(a) — 3 cases
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
Thunderbird Engineering, Inc. v. American Design, Inc. (2023) wisctapp
Kathe Lake v. Mei & Associates, S.C. (2024) wisctapp
— Wis. Stat. § 895.446(3)(b) — 10 cases
Estate of Stanley G. Miller v. Diane Storey (2017) wis “2014AP2420 ¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)2 for theft of money from her elderly uncle when she cared for him in the last year of his life.”
CoVantage Credit Union v. Stangel (In re Stangel) (2018) wieb “That is the amount of actual damages supported by the record, and on which the Court will base the judgment. The Court will not speculate about what the additional $5.”
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
Alden Associates v. Jacki Curry (2024) wisctapp
Schneider, Carl v. Hybrid Car Store, Inc. (2023) wiwd
— Wis. Stat. § 895.446(3)(c) — 10 cases
Estate of Stanley G. Miller v. Diane Storey (2017) wis “2014AP2420 ¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)2 for theft of money from her elderly uncle when she cared for him in the last year of his life.”
CoVantage Credit Union v. Stangel (In re Stangel) (2018) wieb “That is the amount of actual damages supported by the record, and on which the Court will base the judgment. The Court will not speculate about what the additional $5.”
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
Thunderbird Engineering, Inc. v. American Design, Inc. (2023) wisctapp
Krizan v. Krizan (2022) wiwb
— Wis. Stat. § 895.446(3m) — 1 case
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
— Wis. Stat. § 895.446(3m)(b) — 2 cases
Estate of Stanley G. Miller v. Diane Storey (2017) wis “2014AP2420 ¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)2 for theft of money from her elderly uncle when she cared for him in the last year of his life.”
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
— Wis. Stat. § 895.446(4) — 2 cases
Below v. Norton (2008) wis “¶ 7 We note that the issue of whether the ELD bars claims under Wis. Stat. § 895.446 [5] (formerly Wis. Stat.”
Estate of Miller v. Storey (2016) wisctapp “Storey also contends the court erred in awarding actual attorney fees under Wis. Stat. § 895.446 (3)(b), in awarding double costs in this case, and ordering the judgment be deemed restitution.”
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