Wisconsin Statutes & Annotations
Chapter 895 - Damages, liability, and miscellaneous provisions regarding actions in courts.
895.446 - Property damage or loss caused by crime; action for.

895.446 Property damage or loss caused by crime; action for.
(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.
(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.
(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:
(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.
(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.
(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.
(3m)
(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.
(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.
(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.
(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.
(6) A person is not criminally liable under s. 943.30 for any action brought in good faith under this section.
History: 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.
Civil 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. Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.
Attorney 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. Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.
Nothing in this section precludes application of the third-party liability rule discussed in section 533 of the Restatement (Second) of Torts, which provides that, under some circumstances, a seller may be liable to a third party for indirect misrepresentations causing pecuniary loss. To the contrary, sub. (1) provides a civil cause of action to “any person" who suffers damage or loss by reason of intentional conduct that violates the statute. Pagoudis v. Keidl, 2021 WI App 56, 399 Wis. 2d 75, 963 N.W.2d 803, 20-0225.
Both 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).
Under Wisconsin law the economic loss doctrine does not bar recovery under s. 100.18, but it does bar recovery under s. 895.80 [now s. 895.446], at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005).

Structure Wisconsin Statutes & Annotations

Wisconsin Statutes & Annotations

Chapter 895 - Damages, liability, and miscellaneous provisions regarding actions in courts.

895.01 - What actions survive; actions not to abate.

895.02 - Measure of damages against personal representative.

895.03 - Recovery for death by wrongful act.

895.031 - Recovery from estate of wrongdoer.

895.035 - Parental liability for acts of minor child.

895.037 - Abortions on or for a minor without parental consent or judicial waiver.

895.038 - Partial-birth abortions; liability.

895.04 - Plaintiff in wrongful death action.

895.043 - Punitive damages.

895.044 - Damages for maintaining certain claims and counterclaims.

895.045 - Contributory negligence.

895.046 - Remedies against manufacturers, distributors, sellers, and promoters of products.

895.047 - Product liability.

895.048 - Recovery by auto or motorboat owner limited.

895.049 - Recovery by a person who fails to use protective headgear while operating certain motor vehicles.

895.05 - Damages in actions for libel.

895.052 - Defamation by radio and television.

895.055 - Gaming contracts void.

895.056 - Recovery of money wagered.

895.057 - Action against judicial officer for loss caused by misconduct.

895.06 - Recovery of divisible personalty.

895.065 - Radioactive waste emergencies.

895.07 - Claims against contractors and suppliers.

895.08 - Sport shooting ranges; actions related to safety.

895.09 - Scrap metal or plastic bulk merchandise container theft; civil liability.

895.10 - Tort actions in residential real estate transactions.

895.14 - Tenders of money and property.

895.28 - Remedies not merged.

895.33 - Limitation of surety's liability.

895.34 - Renewal of sureties upon becoming insufficient and effects thereof.

895.345 - Justification of individual sureties.

895.346 - Bail, deposit in lieu of bond.

895.35 - Expenses in actions against municipal and other officers.

895.36 - Process against corporation or limited liability company officer.

895.37 - Abrogation of defenses in employee personal injury actions.

895.375 - Abrogation of defense that contract was champertous.

895.42 - Deposit of undistributed money and property by personal representatives and others.

895.43 - Intentional killing by beneficiary of contract.

895.435 - Intentional killing by beneficiary of certain death benefits.

895.441 - Sexual exploitation by a therapist; action for.

895.442 - Sexual exploitation by a member of the clergy; action for.

895.443 - Physical injury, emotional distress, loss or damage suffered by members of certain groups; action for.

895.444 - Injury caused by criminal gang activity; action for.

895.445 - Damage to certain machines; action for.

895.446 - Property damage or loss caused by crime; action for.

895.447 - Certain agreements to limit or eliminate tort liability void.

895.448 - Safety devices on farm equipment, ordinary negligence.

895.449 - Action for loss caused by failure to pay for gasoline or diesel fuel.

895.45 - Service representatives for adult abusive conduct complainants.

895.453 - Payments of chiropractic services from attorney contingency fees.

895.455 - Limits on recovery by prisoners.

895.457 - Limiting felon's right to damages.

895.46 - State and political subdivisions thereof to pay judgments taken against officers.

895.463 - Zoning ordinances.

895.47 - Indemnification of the Wisconsin State Agencies Building Corporation and the Wisconsin State Public Building Corporation.

895.472 - Indemnification of a financial institution.

895.475 - Exemption from civil liability for furnishing safety inspection or advisory services.

895.476 - Civil liability exemption; exposure to the novel coronavirus SARS-CoV-2 or COVID-19.

895.478 - Civil liability exemption; opioid antagonists.

895.48 - Civil liability exemption; emergency medical care.

895.4801 - Immunity for health care providers during COVID-19 emergency.

895.4802 - Civil liability exemption; hazardous materials.

895.4803 - Civil liability exemption; information concerning paternity.

895.481 - Civil liability exemption; equine activities.

895.482 - Civil liability exemption; ski patrol members.

895.483 - Civil liability exemption; regional and local emergency response teams and their sponsoring agencies.

895.484 - Civil liability exemption; entering a vehicle to render assistance.

895.485 - Civil liability exemption; out-of-home care providers and child-placing agencies.

895.486 - Civil immunity exemption; reports of insurance fraud.

895.487 - Civil liability exemption; employment references.

895.488 - Civil liability exemption; owner or person in lawful possession of the premises.

895.489 - Civil liability exemption; tenancy references.

895.492 - Civil liability exemption; certificate of qualification for employment.

895.497 - Civil liability exemption: furnishing safety services relating to child safety restraint systems.

895.501 - Civil liability exemption; credit card reencoders and scanning devices.

895.506 - Civil liability exemption; weight gain and obesity claims.

895.508 - Liability exemption; provision of previously owned eyeglasses.

895.51 - Civil liability exemption: food or emergency household products; emergency medical supplies; donation, sale, or distribution.

895.512 - Civil liability exemption; access to toilet facility.

895.514 - Civil liability exemption; Health Insurance Risk-Sharing Plan and Authority.

895.515 - Civil liability exemption; equipment or technology donation.

895.517 - Civil liability exemption: solid waste donation or sale.

895.519 - Civil liability exemption; private campgrounds.

895.52 - Recreational activities; limitation of property owners' liability.

895.523 - Recreational activities in a school building or on school grounds; limitation of liability.

895.524 - Participation in an agricultural tourism activity; limitations on civil liability, assumption of risk.

895.525 - Participation in recreational activities; restrictions on civil liability, assumption of risk.

895.526 - Participation in an alpine sport; restrictions on civil liability, assumption of risk.

895.5265 - Civil liability exemption; placement of certain structures in waterways.

895.527 - Sport shooting range activities; limitations on liability and restrictions on operation.

895.528 - Civil liability exemption; placement of markers in waterways.

895.529 - Civil liability limitation; duty of care owed to trespassers.

895.53 - Civil and criminal liability exemption; tests for intoxication.

895.535 - Civil and criminal liability exemption; body cavity search.

895.537 - Liability exemption; sexual assault evidence collection.

895.54 - Liability exemption; notification of release.

895.55 - Liability exemption; oil discharge control.

895.555 - Civil liability exemption; anhydrous ammonia.

895.56 - Liability exemption; handling of petroleum-contaminated soil under contract with the department of transportation.

895.57 - Damages and immunity; unauthorized release of animals.

895.58 - Liability exemption; use of special waste under public works contracts.

895.61 - Asbestos successor corporation; limitation on liability.

895.62 - Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity.

895.65 - Definitions.

895.66 - Mandatory disclosures.

895.67 - Approval of transfers of structured settlement payment rights.

895.68 - Effects of transfer of structured settlement payment rights.

895.69 - Procedure.

895.70 - General provisions.